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Court of AppealAllowedCivil Application No. 54 of 2019 (UR 40/19)· [2019] KECA 177 (KLR)

Attorney General & another v Leisure Lodges Limited & 761 others [2019] KECA 177 (KLR)

Court of Appeal of Kenya
14 November 2019
DMD.K. MusingaSKS. Gatembu KairuAMA.K. Murgor
2,794 words in judgment
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The bottom line

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Kenya's Court of Appeal paused a ruling that cancelled hundreds of Diani land titles, protecting over 1,000 homeowners from eviction until the appeal is heard.

What this practically means

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Executive summary

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The Attorney General and the Land Registrar, Kwale applied under rule 5(2)(b) of the Court of Appeal Rules for stay of execution of the judgment of the High Court at Mombasa (Ogola, Thande & Chepkwony, JJ.) delivered on 23rd May 2019 in Petition No. 21 of 2010, which cancelled a multiplicity of titles created over Leisure Lodges Limited's parcels of land at Diani Beach and granted the company ownership of the suit properties. The applicants contended that over 1,000 occupants within the larger Diani Settlement Scheme, holding titles, faced eviction and demolition of their homes, that the matter was of public importance, and that the company had reneged on an undertaking to surrender other land for resettlement of squatters. The 1st respondent countered that the intended appeal was not arguable, that consent judgments in earlier suits had confirmed its ownership, and that stay would encourage impunity. Applying the twin principles in Stanley Kangethe Kinyanjui v Tony Keter & Others, the Court found that the draft grounds of appeal - including the contention that the judges overlooked the public importance of the settlement scheme and its effect on squatter resettlement - were arguable, and that without stay the 1st respondent could demolish structures and evict occupants, rendering a successful appeal nugatory. The Court granted stay of execution pending the intended appeal, conditioned on the appeal being filed and served within 45 days, failing which the orders would stand discharged, and ordered each party to bear its own costs.

Key legal issues

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01

Arguability of the intended appeal

Holding

The proposed grounds concerning the public importance of the Diani Settlement Scheme and the resettlement of squatters were arguable; an arguable ground need not succeed, it need only not be frivolous.

Reasoning

The draft memorandum raised grounds that the High Court overlooked that more than 1,000 land owners within the larger Diani Settlement Scheme would be affected, and that granting absolute ownership of Plot Diani Beach/856 would stall resettlement of genuine squatters. The Court restated that an arguable ground is one that is not frivolous and merits consideration, without making definitive findings of fact or law at this stage.

p. 3
02

Whether the intended appeal would be rendered nugatory

Holding

Without stay, the 1st respondent could demolish structures and evict occupants of the suit properties before the appeal is heard, rendering a successful appeal nugatory.

Reasoning

The Court found that absent stay there would be nothing to stop the 1st respondent from demolishing all structures and evicting all occupants of the suit properties before the intended appeal was heard. Such irreversible action would render the appeal nugatory if it succeeded, and the 1st respondent would suffer no serious prejudice from waiting a few more months given the dispute has been in court since about 2007.

p. 3

Legal principles established

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  • A rule 5(2)(b) application for stay or injunction pending appeal succeeds only if the applicant demonstrates that the appeal is arguable and that it will be rendered nugatory unless the orders sought are granted; both twin principles must be satisfied.

Court orders

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  1. 1.Stay of execution of the judgment delivered by the High Court on 23rd May 2019 and all other consequential orders pending hearing and determination of the intended appeal
  2. 2.The intended appeal shall be filed and served within 45 days from the date of the ruling
  3. 3.If the intended appeal is not filed and served within the stipulated period, the stay orders shall stand discharged and the application dated 2nd July 2019 shall stand dismissed
  4. 4.Each party shall bear its own costs of the application

Authorities

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Legislation

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

Cases cited (3)

  • Stanley Kangethe Kinyanjui v Tony Keter & Others
    [2013] eKLR
  • Leisure Lodges Limited vs The Commissioner of Lands, The Chief Land Registrar, The Land Registrar, Kwale and the Attorney General (HC Land Case No. 188 of 2008)
  • Leisure Lodges Limited v The Commissioner of Lands and Others (Nairobi Civil Case No. 217 of 2008)
On appeal from
High Court of Kenya at Mombasa
H.C. Petition No. 21 of 2010
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules (original and discretionary jurisdiction to grant stay of execution 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, "Attorney General & another v Leisure Lodges Limited & 761 others [2019] KECA 177 (KLR)", Case Analysis (2019). Civil Application No. 54 of 2019 (UR 40/19). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/177/eng@2019-11-14

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