Peris Shanyasi Alluya & 4 others v Kibutuk Arap Too [2018] KECA 136 (KLR)
The bottom line
#The Court of Appeal paused an eviction order, confirming Kenyans can stay on disputed land while their appeal is heard.
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 intended appeal is arguable
- 2.Whether the intended appeal would be rendered nugatory if stay of execution is not granted
Key legal issues
#Whether the applicants satisfied the twin requirements under Rule 5(2)(b) for a stay of execution pending appeal
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.
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.
Legal principles established
#- 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
#- 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.Costs of the application to abide the outcome of the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the judgment
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
#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.
That costs of this application shall abide the outcome of the appeal.
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.
Issues in the judgment
#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.
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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.