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Court of AppealAllowedCivil Application No. 172 of 2019 (UR 159/2019)· [2019] KECA 51 (KLR)

Afrison Export Import Limited & another v Patrick Marai Mungai & 3 others [2019] KECA 51 (KLR)

Court of Appeal
22 November 2019
William OukoW. OukoHOHannah OkwenguFSF. Sichale
1,399 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal paused the transfer of 1.8 acres won by adverse possession, holding the landowners' appeal was arguable and execution could destroy it.

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 Nairobi (Ouko, P, Okwengu and Sichale, JJ.A) on an application under Rule 5(2)(b) of the Court of Appeal Rules for stay of execution of the judgment of Mutungi, J of the Environment and Land Court delivered on 17th May 2019 in ELC Case No. 228 of 2012. That judgment declared the respondents entitled to 1.8 acres out of LR No. 7879/4 by adverse possession, ordered subdivision and vesting of the land in them, and issued a permanent injunction restraining the applicants from interfering with their possession. The applicants argued their intended appeal raised arguable issues - the legal standing of the Gospel Evangelistic Church of Kenya, determination of the suit on unpleaded facts, and the viability of the adverse possession claim - and that execution would render the appeal nugatory by extinguishing the subject matter. The respondents contended the appeal was frivolous and that the decree had already been registered and the land vested, leaving nothing to stay; the court discounted that averment as unsubstantiated. Applying the established twin test under Rule 5(2)(b), the court found the appeal arguable and the apprehension of nugatoriness well founded, allowed the motion, stayed execution of the entire judgment pending the hearing and determination of the intended appeal, directed that the appeal be filed and served within 90 days, and ordered that costs of the application be in the appeal.

Key legal issues

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01

Whether the intended appeal is arguable and not frivolous

Holding

The applicants identified three arguable issues, including the legal standing of the church and whether the suit was determined on unpleaded facts; that sufficed at the interlocutory stage.

Reasoning

The court held it premature at the stay stage to assess whether the grounds would succeed. It suffices that the issues raised are arguable and not frivolous, and a single arguable issue is enough to satisfy this limb of the Rule 5(2)(b) test.

p. 2
02

Whether the intended appeal would be rendered nugatory if stay is not granted

Holding

Since the decree provided for subdivision and vesting of the disputed 1.8 acres in the respondents, execution could destroy the subject matter of the appeal; the nugatory limb was satisfied.

Reasoning

The subject of the intended appeal is ownership of 1.8 acres out of LR No. 7879/4. The decree included subdivision and vesting, so the respondents could deal with the property in a manner adverse to the applicants' intended appeal. An unsubstantiated averment that the decree had already been executed was discounted.

p. 2

Legal principles established

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  • An applicant under Rule 5(2)(b) must satisfy both the arguability and the nugatory-impact requirements to obtain stay of execution pending appeal.
  • Only one arguable issue suffices to establish that an intended appeal is arguable at the stay stage.

Court orders

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  1. 1.An order of stay of execution of the entire judgment delivered by Mutungi, J on 17th May, 2019 pending the hearing and determination of the intended appeal
  2. 2.The appeal shall be filed and served within 90 days from the date of the ruling
  3. 3.The costs of the application shall be in the appeal

Authorities

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Legislation

  • Limitation of Actions ActSections 37 and 38
  • Court of Appeal RulesRule 5(2)(b)

Cases cited (6)

  • Equity Bank Limited v West Link Mbo Limited
    Civil Application No. Nai 78 of 2011
  • Jim Wachira Kabiru vs Susan Wangui Karanja & 2 others
    [2015] eKLR
  • Reliance Bank Ltd (In Liquidation) vs. Norlake Investments Ltd
    [2002] 1EA 227
  • Ishmael Kagunyi Thande vs. Housing Finance Kenya Ltd.
    Civil Appl No. Nai 157 of 2006 (Unreported)
  • Republic v. Kenya Anti-Corruption Commission & 2 others
    [2009] KLR 31
  • Kenya Tea Growers Association & Another vs Kenya Planters & Agricultural Workers Union
    Civil Application Nai. No. 72 of 2001
On appeal from
Environment and Land Court at Nairobi
ELC Case No. 228 of 2012
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, "Afrison Export Import Limited & another v Patrick Marai Mungai & 3 others [2019] KECA 51 (KLR)", Case Analysis (2019). Civil Application No. 172 of 2019 (UR 159/2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/51/eng@2019-11-22

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