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Court of AppealAllowedCivil Application No. 64 of 2018 (UR No. 40/2018)

Peris Shanyasi Alluya & 4 others v Kibutuk Arap Too [2018] KECA 136 (KLR)

Court of Appeal
8 November 2018
1,714 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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The Court of Appeal paused an eviction order, confirming Kenyans can stay on disputed land while their appeal is heard.

What this practically means

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Executive summary

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The applicants sought stay of execution, pending their intended appeal, of the judgment of the Environment and Land Court at Eldoret (Odeny, J) delivered on 31st October 2017 in Environment and Land Case No. 41 of 2016, which declared that land parcels Nandi/Kapkangani/1439 and 2211 solely belong to the respondent, ordered the applicants to vacate within 60 days, and dismissed their counter claim founded on long occupation since 1972. The application was brought under Rule 5(2)(b) of the Court of Appeal Rules. The respondent opposed, contending the intended appeal was not arguable and the application was an abuse of process; he did not appear at the hearing. The Court of Appeal (Githinji, Okwengu and Mohammed, JJ.A) restated that Rule 5(2)(b) jurisdiction is original and discretionary, and that an arguable ground need only not be frivolous, a single arguable ground sufficing. The court declined to delve into the merits, finding the competing proprietary claims raised an arguable appeal. On the nugatory factor, applying Reliance Bank Ltd v Norlake Investments Ltd, it found the applicants exposed to imminent eviction, the respondent having already applied for an eviction order, such that execution would render the appeal nugatory. The court allowed the application, staying execution of the judgment and orders of 31st October 2017 pending the hearing and determination of the intended appeal, with costs of the application to abide the outcome of the appeal.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the intended appeal is arguable
  2. 2.Whether the intended appeal would be rendered nugatory if stay of execution is not granted

Key legal issues

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01

Whether the applicants satisfied the twin requirements under Rule 5(2)(b) for a stay of execution pending appeal

Holding

The application was allowed: the court found a single arguable ground (competing proprietary claims over the suit properties) and imminent eviction capable of rendering the appeal nugatory.

Reasoning

The court restated that Rule 5(2)(b) jurisdiction is original and discretionary, requiring an arguable appeal and that the appeal not be rendered nugatory. An arguable ground need only not be frivolous. Both parties claimed proprietary rights over the suit properties, which sufficed. The respondent had already filed an application seeking an eviction order, exposing the applicants to imminent eviction from their homes of long standing, satisfying the nugatory-prong.

p. 3

Legal principles established

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  • In dealing with a Rule 5(2)(b) application, the Court of Appeal exercises original and discretionary jurisdiction, which does not constitute an appeal from the judge's discretion.
  • An arguable ground of appeal need not succeed; it is enough that it is not frivolous, and a single arguable ground suffices.
  • Factors rendering an appeal nugatory must be considered within the circumstances of each particular case, with the Court bound to consider the conflicting claims of both sides.

Court orders

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  1. 1.Stay of execution of the judgment and orders of 31st October 2017 requiring the applicants to vacate the suit properties, pending the hearing and determination of the intended appeal
  2. 2.Costs of the application to abide the outcome of the appeal

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

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Wrote the judgment

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Wrote the judgment

On appeal from
Environment and Land Court of Kenya at Eldoret
Environment and Land Case No. 41 of 2016
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

That there shall be an order of stay of execution of the judgment and orders of 31st October, 2017 requiring the applicants, their agents, servants and/or anybody acting on their behalf to vacate the suit properties pending the hearing and determination of the intended appeal is stayed.
p. 3Final orders - stay of execution granted
That costs of this application shall abide the outcome of the appeal.
p. 3Final orders - costs
The court is minded to avoid going into the merits of the intended appeal, as this will be the preserve of the bench that will hear and determine the main appeal.
p. 3Limits of Rule 5(2)(b) jurisdiction

Issues in the judgment

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minor

The judgment inconsistently spells the land parcel numbers, referring to 'NANDI/KAPKANGAI/1339 and 2211' in the description of the plaint but 'NANDI/KAPKANGANI/1439 and 2211' elsewhere, including in the judgment under appeal.

minor

The judgment names counsel for the applicants inconsistently: submissions were made by Mr Kipkosgei Choge, yet paragraph 15 refers to 'the applicants’ counsel Mr Stanley N. Kagunza' deponing the verifying affidavit.

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Peris Shanyasi Alluya & 4 others v Kibutuk Arap Too [2018] KECA 136 (KLR)", Case Analysis (2018). Civil Application No. 64 of 2018 (UR No. 40/2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/136/eng@2018-11-08

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