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Court of AppealDismissedCivil Application No. 53 of 2018· [2018] KECA 274 (KLR)

Mary Njeri Gicheha v Benedict Obonyo Omollo & 2 others [2018] KECA 274 (KLR)

Court of Appeal
11 October 2018
PKP. O. KiageFSF. SichaleSKS. ole Kantai
1,428 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to stop an eviction, finding the applicant's appeal had no arguable point and her application failed to even identify the land in dispute.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Nyeri (Kiage, Sichale and ole Kantai, JJ.A.) on a Notice of Motion brought under rules 5(2)(b) and 42 of the Court of Appeal Rules in which Mary Njeri Gicheha sought an injunction restraining the respondents from evicting her from an unnamed suit property pending an intended appeal against a ruling of the Environment and Land Court at Nyeri (Waithaka, J.) delivered on 28 February 2018 in ELC No. 3 of 2014 striking out her suit with costs. The applicant asserted she had an arguable appeal, that she had long occupied the suit property with her family, and that she would suffer substantial loss if evicted. The respondents, who hold Nyeri/Waraza/1362 in trust for Kids Alive Kenya - a charitable organisation that has developed the land at a cost of over Kshs 100 million - filed a replying affidavit showing that the applicant is in possession of her own separate 3-acre parcel, Nyeri/Waraza/622, and that a previous suit by her had been dismissed. The court restated the twin principles governing rule 5(2)(b) applications from Stanley Kangethe Kinyanjui v Tony Ketter: arguability and nugatory-ness. It found the applicant had not even identified the suit property, that the suit below was found to be res judicata, and that the respondents had demonstrated occupation of the suit property. The court held the intended appeal was not arguable and, having so found, declined to consider the nugatory limb. The motion was dismissed with costs to the respondents. The lower court's ruling was not disturbed at this interlocutory stage.

Key legal issues

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Whether the applicant met the twin principles for stay/injunction pending appeal under rule 5(2)(b)

Holding

The application failed: the applicant did not even identify the suit property, and the record showed the suit below was struck out as res judicata while the applicant was in possession of a different parcel, so the intended appeal was not arguable.

Reasoning

The court restated the settled principles from Stanley Kangethe Kinyanjui v Tony Ketter, including that the applicant must satisfy both arguability and nugatory-ness. On the record, the respondents showed the suit property was occupied by them in trust for Kids Alive Kenya and the applicant occupied a separate 3-acre parcel. The application also failed to describe the suit property. Arguability failing, the court did not consider the nugatory limb.

p. 2

Legal principles established

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  • An applicant under rule 5(2)(b) must satisfy both twin principles: an arguable appeal and that the appeal will be rendered nugatory absent stay; failure on arguability obviates consideration of the nugatory limb.

Court orders

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  1. 1.The Notice of Motion seeking an injunction/stay pending appeal is dismissed with costs to the respondents
On appeal from
Environment and Land Court at Nyeri
ELC No. 3 of 2014
Jurisdiction invoked
Rule 5(2)(b) and rule 42 of the Court of Appeal Rules (application for stay of execution/injunction pending appeal)

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, "Mary Njeri Gicheha v Benedict Obonyo Omollo & 2 others [2018] KECA 274 (KLR)", Case Analysis (2018). Civil Application No. 53 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/274/eng@2018-10-11

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