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Court of AppealAllowedCivil Application No. 106 of 2019 (UR 72/19)· [2019] KECA 78 (KLR)

Ginson Kiragu Mberia alias Ginson Kiragu Njagi v Stanley Bundi Rimberia & another [2019] KECA 78 (KLR)

Court of Appeal of Kenya
22 November 2019
WKW. KaranjaHOH. M. OkwenguKMK. M'inoti
1,214 words in judgment
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The bottom line

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The Court of Appeal stopped eviction on disputed land until an appeal is heard, because the occupier raised a genuinely arguable case on adverse possession.

What this practically means

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Executive summary

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This is an unopposed motion under rule 5(2)(b) of the Court of Appeal Rules by Ginson Kiragu Mberia seeking stay of execution of the judgment of the Environment and Land Court at Chuka (Njoroge, J.) dated 29th May 2019, which dismissed his Originating Summons claiming 3 acres of LR No. Mwimbi/Murugi/180 by adverse possession, ordered him to vacate within three months on pain of supervised eviction, and directed the land registrar to remove inhibitions on the title. The applicant, who claimed occupation since 1948 with substantial developments including over 4,000 tea bushes and 100 coffee trees, had already filed Nyeri Civil Appeal No. 204 of 2019. The respondents, though duly served, filed no replying affidavit and neither they nor their advocate appeared. Applying the settled twin test for stay - an arguable appeal and the risk that a successful appeal would be rendered nugatory - the court found the applicant demonstrated arguable issues, notably whether the judge properly evaluated the evidence and applied adverse-possession law, and whether the judge issued eviction and de-inhibition orders that no party had sought. The court also held that eviction would render a successful appeal nugatory since the applicant's averments of long occupation and development were uncontroverted. The court allowed the application, stayed execution of the judgment pending the appeal, and directed that costs of the application abide the outcome of the appeal.

Key legal issues

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01

Whether the twin principles for stay under rule 5(2)(b) were satisfied

Holding

The application was allowed: the appeal was shown to be arguable, and the uncontroverted averments of occupation since 1948 and substantial developments meant eviction would render a successful appeal nugatory.

Reasoning

The court reiterated the two-part rule 5(2)(b) test. On the first limb, the applicant raised arguable issues including whether the judge properly evaluated evidence and applied adverse-possession law, and whether he issued orders no party had sought; one bona fide arguable issue suffices. On the second limb, the averments of occupation since 1948 and substantial development were uncontroverted, the respondents having filed no replying affidavit and not appearing despite service, and the applicant remained in possession; eviction would render the appeal nugatory.

p. 2

Legal principles established

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  • An applicant for stay under rule 5(2)(b) must satisfy the twin tests of an arguable appeal and that the appeal will be rendered nugatory if stay is not granted.
  • One bona fide arguable issue suffices for the first limb of the rule 5(2)(b) test.
  • An arguable appeal need not be one that must succeed; it is one that is not frivolous and raises an issue worthy of full consideration.

Court orders

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  1. 1.Stay of execution of the judgment of the Environment and Land Court at Chuka dated 29th May 2019 pending the hearing and determination of Nyeri Civil Appeal No. 204 of 2019
  2. 2.Costs of the application to abide the outcome of the appeal

Authorities

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Legislation

  • Court of Appeal Rulesrule 5(2)(b)

Cases cited (3)

  • Jaribu Holdings Ltd v. Kenya Commercial Bank Ltd
    CA No. 314 of 2007
  • Kenya Tea Growers Association & Another v. Kenya Planters & Agricultural Workers Union
    CA. No. Nai. 72 of 2001
  • Kenya Railways Corporation v. Edermann Properties Ltd
    CA. No. Nai. 176 of 2012
On appeal from
Environment and Land Court at Chuka
ELCC No. 306 of 2017
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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Later judgments citing this (4)

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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, "Ginson Kiragu Mberia alias Ginson Kiragu Njagi v Stanley Bundi Rimberia & another [2019] KECA 78 (KLR)", Case Analysis (2019). Civil Application No. 106 of 2019 (UR 72/19). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/78/eng@2019-11-22

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