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Court of AppealAllowedCivil Application No. 61 of 2018

James Thomas Andafu v Joseph Makokha Akhulunya [2018] KECA 245 (KLR)

Court of Appeal
18 October 2018
1,273 words in judgment
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The bottom line

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The Court of Appeal halted the transfer of disputed land, ruling that cancelling the title would make the owner's appeal pointless before it could be heard.

What this practically means

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Executive summary

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This is a single-judgment ruling of the Court of Appeal at Kisumu (Githinji, Okwengu and Mohammed, JJ.A.) on a Notice of Motion dated 6th June 2018 brought under Rule 5(2)(b) of the Court of Appeal Rules, seeking stay of execution of the judgment and decree of the Environment and Land Court at Kakamega (Matheka, J) of 17th May 2018. The trial court had declared the applicant's proprietary interests in land parcel Butsotso/Indangalasia/248 extinguished by the respondent's adverse possession, cancelled his title deed, and ordered the parcel transferred to the respondent, with costs against the applicant. The applicant argued he had an arguable appeal that would be rendered nugatory by imminent execution; the respondent countered that the decree had already been presented to the Land Registrar and there was nothing to stay. The Court restated the Rule 5(2)(b) principles: its jurisdiction is original and discretionary; a single non-frivolous ground suffices for arguability; and the nugatory test weighs the conflicting claims of both sides in the circumstances of each case. Satisfied that the adverse possession question was arguable and that execution would render the appeal nugatory, the Court stayed execution, specifically the cancellation of the title deed and transfer of the parcel, pending the hearing and determination of the intended appeal, and ordered the costs of the application to abide the outcome of the appeal. The application was allowed in its entirety; this is an interlocutory ruling, so no decision below was disturbed.

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, if the orders of the trial court are executed, the intended appeal will be rendered nugatory

Key legal issues

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01

Whether the intended appeal was arguable under Rule 5(2)(b)

Holding

The Court found the appeal arguable, pointing to the question whether the respondent's adverse possession claim was proved on a balance of probabilities, without delving into the merits.

Reasoning

The Court applied the settled principle that an arguable ground need not succeed, only be non-frivolous, and that a single arguable ground suffices. It identified the adverse possession question as a candidate ground while expressly declining to examine the merits, which belong to the full bench hearing the appeal.

p. 2
02

Whether execution of the judgment would render the intended appeal nugatory

Holding

The Court held that execution, particularly cancellation of the title deed and transfer of the land, would render the appeal nugatory and granted a stay to preserve the status quo pending appeal.

Reasoning

Relying on Reliance Bank Ltd v Norlake Investments Ltd, the Court weighed the conflicting claims of both sides and found that the applicant faced imminent execution proceedings. It concluded that the cancellation of the title deed and transfer of the suit property to the respondent should be stayed to preserve the status quo pending the appeal.

p. 2

Legal principles established

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  • Rule 5(2)(b) jurisdiction is original and discretionary and does not constitute an appeal from the judge's discretion.
  • An arguable ground need not succeed; a single non-frivolous ground suffices.
  • Whether an appeal will be rendered nugatory is assessed case by case, weighing the conflicting claims of both sides.

Court orders

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  1. 1.A stay of execution of the Judgment and Orders of 17th May, 2018 is granted, and the cancellation of the title Deed and transfer to the respondent of title No. Butsotso/Indangalasia/248 is stayed pending the hearing and determination of the intended appeal
  2. 2.Costs of this application to abide by 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

majority

Wrote the judgment

majority

Wrote the judgment

On appeal from
Environment and Land Court at Kakamega
ELC Case No. 619 of 2014 (Formerly CC No. 41 "B" of 2006 (O.S))
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.

A stay of execution of the Judgment and Orders of 17 th May, 2018 is granted, and the cancellation of the title Deed and transfer to the respondent of title No. Butsotso/Indangalasia/248 is stayed pending the hearing and determination of the intended appeal.
p. 2Final orders - stay of execution granted
Costs of this application to abide by the outcome of the appeal.
p. 2Final orders - costs
a single arguable ground of appeal would suffice to meet the threshold that an intended appeal is arguable.
p. 2Rule 5(2)(b) - arguability threshold
To refuse to grant an order of stay to the applicant would cause to it such hardships as would be out of proportion to any suffering the respondent might undergo while waiting for the applicants appeal to be heard and determined.
p. 2Nugatory test - proportion of hardship (Reliance Bank principle)

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, "James Thomas Andafu v Joseph Makokha Akhulunya [2018] KECA 245 (KLR)", Case Analysis (2018). Civil Application No. 61 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/245/eng@2018-10-18

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