Catherine Koriko & 3 others v Evaline Rosa [2019] KECA 137 (KLR)
The bottom line
#Kenya's Court of Appeal refused to pause a land case because the applicants' appeal over a refused amendment had no realistic prospect of success.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the intended appeal against the refusal of leave to amend pleadings is arguable
- 2.Whether the intended appeal would be rendered nugatory if stay of proceedings is not granted
Key legal issues
#Whether the intended appeal was arguable
The intended appeal against the refusal of leave to amend pleadings was not arguable; the trial judge exercised his discretion judicially and was not plainly wrong
The amendments, sought long after the respondent had closed her case, attempted to introduce a new cause of action - abandoning a beneficiary claim for one in adverse possession despite the facts having existed all along. The judge appreciated the law on amendments, applied it to the facts, and allowed the amendment only at the cost of prejudice and injustice to the plaintiff.
Whether the appeal would be rendered nugatory absent stay
Not determined, as failure on the first limb disposed of the application
Having failed on arguability, the applicants could not satisfy the cumulative test for stay. The court declined to engage in the nugatory inquiry as it would be futile.
Legal principles established
#- An applicant for stay of proceedings pending appeal must satisfy both the arguability limb and the nugatory limb
Court orders
#- 1.The motion dated 23rd November 2016 is dismissed
- 2.Costs of the application to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Environment & Land Court at Kisii
- ELC Case No. 171 of 2011
- Jurisdiction invoked
- Inherent appellate jurisdiction to grant temporary relief pending an intended appeal from the Environment & Land Court
Relief refused
#Stay of proceedings in ELC Case No. 171 of 2011 pending the intended appeal
The applicants failed to demonstrate that the intended appeal was arguable; no judicial error was shown in the refusal to allow the amendment
Costs
The motion is dismissed with costs to the respondent.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
the applicant must persuade the Court that he has an arguable appeal, meaning one that raises a bona fide point worthy of judicial consideration, though it need not be one that must necessarily succeed
It behoves an applicant to satisfy the court on both limbs.
The motion is devoid of merit and accordingly fails. It is dismissed with costs to the respondent.
Issues in the judgment
#The supporting affidavit misdates the impugned ruling as 25th November 2016 when it was delivered on 28th October 2016; the court noted the error
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Catherine Koriko & 3 others v Evaline Rosa [2019] KECA 137 (KLR)", Case Analysis (2019). Civil Application No. 93 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/137/eng@2019-11-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.