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Court of AppealDismissedCivil Application No. Nyr. 58 of 2018 (UR No. 42 of 2018)· [2018] KECA 122 (KLR)

Robinson Kuto & 3 others v Jackson Kariuki Kahungura & 5 others [2018] KECA 122 (KLR)

Court of Appeal of Kenya
21 November 2018
William OukoW. OukoFSF. SichaleSKS. ole Kantai
1,586 words in judgment
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The bottom line

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The Court of Appeal refused to pause a KSh 8.5 million land damages judgment because the applicants focused on their own poverty instead of proving the winner couldn't repay.

What this practically means

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Executive summary

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This is a ruling of a three-judge bench of the Court of Appeal (Ouko, Sichale and Kantai, JJA) on a notice of motion dated 24th May 2018 in which four applicants, representatives of the Karagita Landing Beach Self Help Group, sought stay of execution of the judgment and decree of the Environment and Land Court at Nakuru (Munyao J.) dated 25th April 2018 in ELC Cause No. 124 of 2014, pending an intended appeal. The ELC had granted the 1st respondent a permanent injunction and awarded Ksh. 8,000,000 as special damages and Ksh. 500,000 as general damages, following events in which the applicants allegedly invaded the 1st respondent's land parcel LR No. 396 and broke through its gate to create access to Lake Naivasha Beach. The application was premised on Rule 5(2)(b) of the Court of Appeal Rules. Applying the settled twin principles - arguability of the intended appeal and whether it would be rendered nugatory absent stay - as restated in Stanley Kang'ethe Kinyanjui v Tony Ketter and Multimedia University v Gitile N. Naituli, the Court held that the 1st applicant's affidavit deponed only to his own poverty and likelihood of being committed to civil jail, not to the 1st respondent's ability to repay the decretal sum. The Court emphasised that under Rule 5(2)(b) the focus is the respondent's ability to repay, not the applicant's finances. Both limbs having to be satisfied, the Court declined to consider arguability and dismissed the motion with costs to the 1st and 2nd respondents. The decision affirms the binding Rule 5(2)(b) framework for lower courts and this Court.

Key legal issues

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The test for stay of execution pending appeal under Rule 5(2)(b) of the Court of Appeal Rules

Holding

The applicant must demonstrate an arguable appeal and that it will be rendered nugatory absent stay; failure on either limb is fatal. The focus on the nugatory limb, where the decree is a money decree, is the respondent's ability to repay, not the applicant's inability to pay.

Reasoning

The Court restated the principles from Stanley Kang'ethe Kinyanjui v Tony Ketter, including that a single bona fide arguable ground suffices, that the Court must not make definitive findings at the interlocutory stage, and that 'nugatory' means more than worthless. Applying these, the Court found the 1st applicant's affidavit deponed only to his own poverty and risk of civil jail, not to the 1st respondent's inability to repay. Since both limbs must be satisfied, the Court declined to consider arguability and dismissed the motion with costs.

p. 3

Legal principles established

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  • An applicant under Rule 5(2)(b) must satisfy both limbs - arguability of the intended appeal and that it would be rendered nugatory absent stay - and the applicant's own financial ability is irrelevant; the enquiry is into the respondent's ability to repay.
  • Both twin principles of Rule 5(2)(b) must be established before the Court exercises its discretion to grant stay.

Court orders

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  1. 1.The motion dated 24th May 2018 seeking stay of execution pending appeal is dismissed
  2. 2.Costs of the application awarded to the 1st and 2nd respondents

Authorities

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Legislation

  • Court of Appeal RulesRule 5(2)(b)
  • Court of Appeal RulesRule 75

Cases cited (2)

  • Multimedia University & Another vs Professor Gitile N. Naituli
    (2014) eKLR
  • Stanley Kang'ethe Kinyanjui vs. Tony Ketter & Others
    [2013] eKLR
On appeal from
Environment and Land Court of Kenya at Nakuru
ELC Cause No. 124 of 2014
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Robinson Kuto & 3 others v Jackson Kariuki Kahungura & 5 others [2018] KECA 122 (KLR)", Case Analysis (2018). Civil Application No. Nyr. 58 of 2018 (UR No. 42 of 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/122/eng@2018-11-21

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.