Fredrick Kagia Kimani v Damaris Wanjiku Gachoka [2018] KECA 121 (KLR)
The bottom line
#Kenya's Court of Appeal refused to stop a land judgment because a dismissal order cannot be stayed, even where the appeal itself was arguable.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Court has jurisdiction under Rule 5(2)(b) given the notice of appeal on record
- 2.Whether the intended appeal is arguable
- 3.Whether the intended appeal will be rendered nugatory if stay and injunction are not granted
Key legal issues
#Arguability of the intended appeal
The intended appeal was arguable on issues of weight of untested affidavit evidence, appreciation of facts and law, and extinction of the substratum of the proceedings
The court perused the intended grounds of appeal and found that the questions raised - the weight to be attached to affidavit evidence not tested in cross-examination, whether facts and law were properly appreciated, and whether the substratum of proceedings was extinct - were bona fide issues worth consideration. The applicant thus surmounted the first limb of the twin test.
Nugatory value and the requirement of a positive order capable of being stayed
Relief under Rule 5(2)(b) cannot issue where the order below is a dismissal order, as no positive order exists capable of being stayed, and nugatory value was not demonstrated
The applicant failed to demonstrate how the intended appeal would be rendered nugatory. Further, the trial court had merely dismissed the applicant's claim, a negative order. Citing Nairobi Metropolitan PSV Saccos Union Limited, the court held there is no jurisdiction under Rule 5(2)(b) where the High Court's order is a dismissal or striking-out order or where no party was ordered to do or refrain from doing something. Both limbs must be satisfied; the applicant satisfied only one, so the application failed.
Legal principles established
#- Under Rule 5(2)(b), an applicant must satisfy both twin principles: arguability of the intended appeal and that the appeal will be rendered nugatory absent stay; both must be established to succeed
- There is no jurisdiction to grant relief under Rule 5(2)(b) where the High Court's order is a dismissal or striking-out order, i.e. a negative order incapable of being stayed
- An arguable appeal is not one which must necessarily succeed but one raising a bona fide issue worthy of the Court's consideration, and a single arguable point suffices
- Whether an appeal will be rendered nugatory depends on whether what is sought to be stayed is reversible, and if not reversible, whether damages will reasonably compensate the aggrieved party
Court orders
#- 1.The application dated 24th May 2018 seeking stay of execution and injunction pending appeal was dismissed
- 2.Costs of the application to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Environment and Land Court, Milimani Nairobi
- ELC Case No. 570 of 2008
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules
Relief refused
#Stay of the judgment and orders of the Environment and Land Court delivered 26th February 2018
There was no positive order capable of being stayed as the trial court issued a dismissal order, and the applicant failed to demonstrate the appeal would be rendered nugatory
Injunction restraining the respondent from interfering with, alienating or dealing with parcel MUGUGA/GITARU/1994
Both limbs of the Rule 5(2)(b) test must be satisfied; only the arguability limb was met
Costs
The application is dismissed with costs to the respondent.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The position in law is that both limbs must be satisfied before the relief sought can issue.
An arguable appeal or intended appeal is not one which must succeed, but is with reference to one which raises a bona fide issue worth the consideration of the Court
Whether or not an appeal will be rendered nugatory depends on whether or not what is sought to be stayed if allowed to happen is reversible or if it is not reversible whether damages will be reasonable to compensate the party aggrieved
Since the applicant has only succeeded on the first limb, the orders prayed for in the application cannot issue. The application is therefore dismissed with costs to the respondent.
Issues in the judgment
#The judgment states the respondent's written submissions were dated 25th July 2017, which predates the application dated 24th May 2018 - a probable typographical error
The judgment refers to the trial court variously as the High Court and the Environment and Land Court without noting the distinction
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Fredrick Kagia Kimani v Damaris Wanjiku Gachoka [2018] KECA 121 (KLR)", Case Analysis (2018). Civil Application No. 159 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/121/eng@2018-11-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.