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Court of AppealDismissedCivil Application No. 3 of 2018

Philip Masanga Wanjala v Solomon Francis Nangendo Wanyonyi [2018] KECA 258 (KLR)

Court of Appeal of Kenya
4 October 2018
EGE. M. GithinjiHOHannah OkwenguJMJ. Mohammed
754 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to halt execution of a land judgment because the appeal was weak and filed late without seeking an extension of time.

What this practically means

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Executive summary

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This was an interlocutory application 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 Bungoma (Mukunya, J.) dated 18th December 2017, which ordered the Land Registrar, Bungoma, to cancel the applicant's registration as proprietor of title No. Bokoli/Mukuyuni/1194 on the ground of fraud and reinstate the name of the deceased previous owner, Waswa Biket, whose estate the respondent administers. The applicant, who claimed to have purchased the land from the deceased for Kshs.120,000 by an agreement of 2nd August 1995, filed a draft memorandum of appeal with four grounds. The court restated the twin test: the applicant must show the intended appeal is arguable and that it would be rendered nugatory if successful unless stay is granted. Applying the test, the court found the intended appeal was based on issues of fact arising from the trial judge's findings (no sale agreement, no proof of payment, no transfer documents, no Land Control Board consent) which had not been disproved, and was therefore not arguable. It declined to consider the nugatory limb. The court further accepted the respondent's submission that stay could not be granted in vain, since about nine months had elapsed since judgment, no appeal had been filed within the sixty-day period, and no extension of time had been sought. The application was dismissed with costs to the respondent. The decision is binding on the High Court as a restatement of the twin test and the rule that stay will not issue before extension of time is secured.

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 intended appeal succeeds, it would be rendered nugatory unless execution of the High Court judgment and decree is stayed
  3. 3.Whether the court would be acting in vain by granting stay where the time for filing the appeal may have run out and no extension of time has been sought

Key legal issues

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01

Arguability of the intended appeal

Holding

The intended appeal was held not arguable because it raised issues of fact based on findings that were neither disproved nor proved otherwise at trial.

Reasoning

The draft memorandum of appeal showed the intended appeal would rest on issues of fact, attacking the trial judge's findings that there was no agreement of sale, no evidence of payment of the purchase price, no transfer documents and no Land Control Board consent. The applicant demonstrated no basis for disturbing those findings, so the twin test under Rule 5(2)(b) failed at the first limb.

p. 2
02

Whether stay can be granted where the appeal has not been filed and time may have run out

Holding

Stay of execution cannot be granted in vain where the applicant has not applied for and secured an extension of time to file the intended appeal.

Reasoning

The notice of appeal was filed within the stipulated period, but the appeal itself was to be filed within sixty days and had not been filed about nine months after judgment. Counsel attributed the delay to lack of money. The court held that granting stay before an extension of time is sought and secured would be futile.

p. 2
03

Whether the nugatory limb needed consideration

Holding

Having found the appeal not arguable, the court found it unnecessary to consider the nugatory limb.

Reasoning

The twin test under Rule 5(2)(b) requires the applicant to satisfy both limbs. Failure on the arguability limb disposes of the application, and the court expressly declined to make any finding on whether the appeal would be rendered nugatory.

p. 2

Legal principles established

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  • An applicant under Rule 5(2)(b) must satisfy the court that the intended appeal is arguable and that, unless stay is granted, the appeal would be rendered nugatory if successful.
  • Where the time for filing an appeal has run out and no extension of time has been sought and obtained, the court will not grant stay of execution because it would be acting in vain.

Court orders

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  1. 1.The application for stay of execution pending intended appeal is dismissed
  2. 2.Costs of the application awarded to the respondent

The bench

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

EG
majority
HO
majority
JM
majority
On appeal from
High Court of Kenya at Bungoma (Environment and Land Court)
Environment and Land Case No. 2 of 2006
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules

Relief refused

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Stay of execution of the judgment and decree of the High Court dated 18th December 2017 pending the hearing and determination of the intended appeal

The intended appeal was found not arguable, and the court would be acting in vain in granting stay where the time for filing the appeal has run out and no extension of time has been secured

p. 2

Costs

The application is dismissed with costs to the respondent.

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.

For the court to exercise its discretion in favour of the applicant, he has to satisfy the court, inter alia, that the intended appeal is arguable and that unless the order of stay of execution is granted, the intended appeal would, if successful, be rendered nugatory.
p. 1Twin test under Rule 5(2)(b)
Upon our consideration of the judgment and the proposed grounds of appeal, we are not satisfied that the intended appeal is indeed arguable.
p. 2Failure of arguability limb
We agree that the court would be acting in vain before the applicant has applied for and secured an order extending time to file the intended appeal.
p. 2Stay cannot be granted in vain where extension of time has not been sought
For the foregoing reasons, the application is dismissed with costs to the respondent.
p. 2Final orders - dismissal and costs

Issues in the judgment

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minor

The judgment states the High Court judgment was dated 18th December 2017 but later states it was delivered on 1st December 2017, an internal inconsistency in the date of the decision below.

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, "Philip Masanga Wanjala v Solomon Francis Nangendo Wanyonyi [2018] KECA 258 (KLR)", Case Analysis (2018). Civil Application No. 3 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/258/eng@2018-10-04

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