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Court of AppealDismissedCivil Application No. 24 of 2018· [2018] KECA 513 (KLR)

Manchar Singh Sagoo & another v Caroline Njeri Mwicigi & 3 others [2018] KECA 513 (KLR)

Court of Appeal
8 June 2018
William OukoW. OukoMohamed Abdulahi WarsameM. WarsameAMA. K. Murgor
2,012 words in judgment
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The bottom line

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The Court of Appeal refused to pause enforcement of a land sale judgment because the applicants did not show their intended appeal had even one arguable point.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Nairobi (Ouko, P, Warsame and Murgor, JJ.A) on a Notice of Motion dated 2nd February 2018 brought under Rule 5(2)(b) of the Court of Appeal Rules by Manchar Singh Sagoo and Surinder Kaur Sagoo, intended appellants, seeking stay of execution of the judgment of the Environment and Land Court (K. Bor, J) delivered on 25th January 2018 in ELRC No. 117 of 2016. The underlying suit arose from a 2005 agreement for sale of land LR No. 7785/792 for Kshs. 10 million; the respondent rescinded after the applicants failed to complete within the completion notice, then transferred the property, and the trial judge found the respondent had proved her case on a balance of probabilities. The applicants argued before the Court of Appeal that the respondent was not ready and willing to complete, lacked a valid clearance certificate, and had waived or was estopped from relying on the completion notice. The court applied the settled two-limb Rule 5(2)(b) test: an arguable appeal and that a successful appeal should not be rendered nugatory, both of which must be demonstrated. It found the applicants had not shown an arguable point: no prima facie evidence supported the claim that the clearance certificate post-dated the 24th November 2005 completion notice, the trial judge having found the transfer and certificate were forwarded on 8th November 2005. The balance of purchase price was paid on 23rd January 2006, after the notice expired; whether the notice was extended was left to the main appeal. Having failed the first limb, the court did not address nugatory-ness. The application was dismissed with costs to abide the outcome of the intended appeal.

Key legal issues

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01

Whether the applicants demonstrated an arguable appeal for purposes of Rule 5(2)(b)

Holding

The applicants failed to demonstrate an arguable point. Their claim that the clearance certificate was issued after the completion notice was contradicted by the trial judge's finding that the transfer and rates clearance certificate were forwarded on 8th November 2005, and the applicants produced no prima facie evidence to the contrary.

Reasoning

The court applied the settled two-limb test under Rule 5(2)(b): arguability and nugatory-ness, both of which must be demonstrated. On arguability, an applicant need only show one issue fit for decision. The applicants argued the respondent was not ready and willing to complete and had waived or was estopped from relying on the completion notice. The court found no prima facie evidence that the clearance certificate post-dated the notice; the trial judge found it was sent on 8th November 2005. Whether the notice was extended was left for the main appeal, but the remaining points were not arguable.

p. 2
02

Whether both limbs of the Rule 5(2)(b) test must be satisfied

Holding

Yes. Because the applicants failed the arguability limb, the court did not need to consider whether the appeal would be rendered nugatory.

Reasoning

The court reaffirmed that the two principles governing stay under Rule 5(2)(b) - an arguable appeal and that a successful appeal should not be rendered nugatory - are cumulative. Citing Republic v Kenya Anti-Corruption Commission & 2 Others, it held both limbs must be demonstrated to exist before relief can be granted, so failure on the first limb is fatal without inquiry into the second.

p. 2

Legal principles established

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  • An applicant under Rule 5(2)(b) must demonstrate both an arguable appeal and that the appeal will be rendered nugatory if successful; both limbs must co-exist before relief is granted
  • An intended appeal is arguable if it raises at least one issue upon which the Court should pronounce its decision; it need not be shown that the appeal is likely to succeed
  • If an applicant fails on the first limb (arguability), the court need not consider the second limb (nugatory-ness)

Court orders

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  1. 1.Dismissal of the applicants' Notice of Motion dated 2nd February 2018
  2. 2.Costs of the application to abide by the outcome of the intended appeal

Authorities

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Legislation

  • Court of Appeal RulesRule 5(2)(b)

Cases cited (7)

  • Githunguri v Jimba Corporation Limited
    (1988) KLR 838
  • Reliance Bank Ltd (In Liquidation) v Norlake Investments Ltd
    Civil Application Number Nai. 93/02 (UR)
  • Republic v Kenya Anti-Corruption Commission & 2 Others
    [2009] KLR 31
  • Cooperative Bank of Kenya Limited v Banking Insurance and Finance Union (Kenya)
    [2014] eKLR
  • Kenya Tea Growers Association & Another vs Kenya Planters & Agricultural Workers Union
    Civil Application Nai. No. 72 of 2001
  • Kenya Railways Corporation v Edermann Properties Ltd.
    Civil Appeal No. NAI 176 of 2012
  • Ahmed Musa Ismael v. Kumba Ole Ntamorua & 4 others
    Civil Appeal No. NAI 256 of 2013
On appeal from
Environment and Land Court of Kenya at Nairobi
ELRC No. 117 of 2016 (Previously Civil Suit No. 372 of 2006)
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules (application for stay of execution pending intended appeal)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (7)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Manchar Singh Sagoo & another v Caroline Njeri Mwicigi & 3 others [2018] KECA 513 (KLR)", Case Analysis (2018). Civil Application No. 24 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/513/eng@2018-06-08

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