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Court of AppealAllowedCivil Appeal No. 16 of 2018 (UR 15/2018)· [2018] KECA 525 (KLR)

Josephine Koki Raymond v Philomena Kanini Maingi (personal representative of Maingi Musila Mutava (Deceased) & another [2018] KECA 525 (KLR)

Court of Appeal
1 January 2018
NANambuyeSISichaleSKS. ole Kantai
1,746 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Court of Appeal paused an eviction from Kenyan land, ruling a home occupier's appeal raised real questions that would be wasted if she were evicted first.

What this practically means

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Executive summary

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The applicant, Josephine Koki Raymond, moved the Court of Appeal at Nairobi under Rule 5(2)(b) of the Court of Appeal Rules seeking stay of execution of the judgment of the High Court at Machakos (Angote, J.) in Machakos ELC Case No. 345 of 2011, which had dismissed her claim that she was a bona fide purchaser and owner of land parcel Donyo Sabuk/Komarock Block 1/1339, held that the 2011 agreement and affidavit she relied on were forgeries, found that the property was purchased by her husband and validly transferred to the 2nd respondent, and directed her eviction. The applicant filed a Notice of Appeal and contended the appeal was arguable and that eviction would render it nugatory. The respondents, opposing orally without a replying affidavit, argued the appeal was not arguable and that no prejudice would ensue. The court applied the twin principles crystallised in Stanley Kangethe Kinyanjui v Tony Ketter, adopting eleven enumerated guidelines covering the original and discretionary nature of Rule 5(2)(b) jurisdiction, the sufficiency of a single bona fide arguable ground, the meaning of 'nugatory', and the burden where impecunity is alleged. It found the intended complaints, including alleged misdirection by the trial judge and a claimed constructive trust, raised arguable points. On the second limb, the applicant's possession since 2005 and the absence of any replying affidavit rebutting the threat of disposal meant the appeal could be rendered nugatory. The court allowed the application in terms of prayer 3, staying execution pending the intended appeal, with costs to abide the outcome. This is an interlocutory ruling, not a final disposition of the appeal.

Key legal issues

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01

Whether the intended appeal is arguable

Holding

The intended complaints (misdirection by the judge, failure to find a constructive trust) are not frivolous and raise arguable points.

Reasoning

The court considered the draft memorandum of appeal complaints, including that the judge misdirected himself, considered only the respondents' case, and failed to find that the applicant parted with the purchase price and received vacant possession, creating a constructive trust. It found these arguable though not certain to succeed, satisfying the first limb of the Rule 5(2)(b) test.

p. 2
02

Whether the intended appeal would be rendered nugatory

Holding

Given the applicant's continuous possession since 2005 and the absence of a replying affidavit rebutting the fear of disposal, the second limb was satisfied.

Reasoning

The court noted that the applicant and her family have been in possession since 2005 and that no replying affidavit controverted the fears of demolition or disposal. Counsel's submissions from the bar were insufficient to displace those fears, so the substratum of the appeal could be destroyed if eviction proceeded, satisfying the nugatory limb.

p. 3

Legal principles established

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  • A single bona fide arguable ground suffices to satisfy the arguability limb of Rule 5(2)(b).
  • An arguable appeal need not necessarily succeed; it is one which is not frivolous and ought to be argued fully.
  • An applicant under Rule 5(2)(b) must satisfy both twin principles of arguability and nugatory-ness.
  • Unrebutted assertions from the bar, absent a replying affidavit, cannot displace an applicant's reasonable fear that the appeal will be rendered nugatory.

Court orders

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  1. 1.Application allowed in terms of prayer three (3); stay of execution of the High Court orders pending the hearing and determination of the intended appeal
  2. 2.Costs of the application to abide the outcome of the intended appeal

Authorities

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Legislation

  • Court of Appeal RulesRule 5(2)(b)
  • Court of Appeal RulesRule 75

Cases cited (8)

  • Stanley Kangethe Kinyanjui v Tony Ketter and 5 Others
    [2013] eKLR
  • Ruben & 9 others v Nderitu & Another
    (1989) KLR 459
  • Halai & Another v Thornton & Turpin (1963) Ltd.
    (1990) KLR 365
  • David Morton Silverstein v Atsango Chesoni
    Civil Application No. Nai 189 of 2001
  • Damji Pragji Mandavia v Sara Lee Household & Body Care (K) Ltd
    Civil Application No. Nai 345 of 2004
  • Joseph Gitahi Gachau & Another v Pioneer Holdings (A) Ltd. & 2 others
    Civil Application No. 124 of 2008
  • Reliance Bank Ltd v Norlake Investments Ltd
    [2002] 1 EA 227
  • International Laboratory for Research on Animal Diseases v Kinyua
    [1990] KLR 403
On appeal from
High Court of Kenya at Machakos
High Court Civil Suit No. 345 of 2011
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules

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, "Josephine Koki Raymond v Philomena Kanini Maingi (personal representative of Maingi Musila Mutava (Deceased) & another [2018] KECA 525 (KLR)", Case Analysis (2018). Civil Appeal No. 16 of 2018 (UR 15/2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/525/eng@2018-06-08

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