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Court of AppealDismissedCivil Application No. 98 of 2019· [2019] KECA 90 (KLR)

Joel Kiprono Mutai v County Government of Kericho & another [2019] KECA 90 (KLR)

Court of Appeal
22 November 2019
Martha Karambu KoomeM.K. KoomeHOHannah OkwenguSKS. ole Kantai
1,592 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 refused to stop a Kericho road expansion through the applicant's property, ruling money can adequately compensate his quantified losses.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal (Koome, Okwengu and Kantai, JJ.A.) dismissing an application under Rule 5(2)(b) of the Court of Appeal Rules by Joel Kiprono Mutai seeking an injunction to stop the County Government of Kericho and its Chief Officer, Roads, from trespassing on or destroying his property, Kericho/Chemoiben/186, in the course of opening up the Kipkero-Menet-Chemosot road, and seeking stay of execution of a ruling of Onyango, J. of the Environment and Land Court at Kericho dated 22nd May 2019. The High Court judge had declined the applicant's injunction, holding that the balance of convenience favoured the respondents completing the public road, which the applicant did not oppose, but directing that he be given 60 days' notice if further trees had to be cut. The application below is not disturbed at this stage; the Court of Appeal simply refused to stay its execution. Applying the twin principles in Stanley Kangethe Kinyanjui v Tony Ketter & Others, the court held that the draft grounds of appeal were not arguable, as the applicant had admitted he was not opposed to the road's expansion and had quantified his losses in the petition, giving the trial court guidance on compensation. On nugatory-ness, the court noted the fence had already been brought down and its value quantified, and that the applicant's Sunshine School had raised no complaint about security. Both limbs failing, the application was dismissed with costs to the respondents on 22nd November 2019. The petition in the Environment and Land Court remains pending and undetermined.

Key legal issues

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01

Whether the intended appeal was arguable

Holding

The court held that the draft grounds of appeal were not arguable points, since the applicant had admitted he was not opposed to the road expansion and had quantified his claim, giving the trial court guidance on compensation.

Reasoning

The court perused the draft Memorandum of Appeal and found the grounds - that the judge left the applicant without a remedy, erred on the balance of convenience, and made final findings - unarguable. The applicant had freely admitted before the judge that he was not opposed to the expansion of the public road, and his petition had quantified his losses, so the trial court had clear guidance on compensation should he prove them.

p. 2
02

Whether the intended appeal would be rendered nugatory absent stay

Holding

The applicant failed to demonstrate nugatory-ness: the fence loss was quantified in the petition and no complaint had been raised by the school itself, and damages could compensate him.

Reasoning

The court considered the claim that the security of Sunshine School with over 400 students would be compromised. It noted that the fence had already been brought down and its value quantified in the petition, and that there was no complaint from the school itself regarding the fence or any security issue. Since the losses were quantified and compensable, the nugatory test failed.

p. 2

Legal principles established

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  • An applicant for stay of execution pending appeal in the Court of Appeal must satisfy both the arguability and nugatory principles, and the court must not make definitive findings of fact or law on a Rule 5(2)(b) application
  • Whether an appeal will be rendered nugatory depends on whether what is sought to be stayed is reversible, or if not reversible, whether damages will reasonably compensate the aggrieved party

Court orders

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  1. 1.Dismissal of the application under Rule 5(2)(b) for stay of the ruling of Onyango, J. dated 22nd May 2019 and for injunction
  2. 2.Costs of the application awarded to the respondents

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 2, 3, 10, 28, 29, 31, 40, 42, 47(2), 60(1)(b), 69
  • Court of Appeal RulesRule 5(2)(b)
  • Court of Appeal RulesRule 75

Cases cited (1)

  • Stanley Kangethe Kinyanjui v Tony Ketter & Others
    [2013] eKLR
On appeal from
High Court of Kenya at Kericho (Environment and Land Court)
E.L.C. No. 1 of 2019
Jurisdiction invoked
Rule 5(2)(b) 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, "Joel Kiprono Mutai v County Government of Kericho & another [2019] KECA 90 (KLR)", Case Analysis (2019). Civil Application No. 98 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/90/eng@2019-11-22

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