Nthiga Munyari v Njeru Munyari & another (Suing as the administrators of the estate of Ituro Korugari) [2019] KECA 208 (KLR)
The bottom line
#The Court of Appeal refused to pause a land transfer order because the applicant neither proved his appeal was arguable nor showed irreparable harm would follow.
What this practically means
#Executive summary
#Key legal issues
#Whether the intended appeal is arguable
The appeal is not arguable; the record before the Court was incomplete and the applicant neither attended the hearing nor sought to set aside the proceedings
The applicant's counsel applied for an adjournment which was denied, but the applicant gave no reason for his own absence and did not attach the full proceedings showing the reasons for the adjournment application or the denial. Counsel participated in cross-examination but failed to file submissions as directed, and the applicant did not apply to set aside the proceedings or appeal against the adjournment ruling. The Court was therefore unable to tell whether the trial Judge declined his discretion judiciously, and was not convinced the appeal was arguable.
Whether the intended appeal would be rendered nugatory if stay is not granted
Nugatory-ness was not demonstrated given the parties' continued co-existence on the land and the 1st respondent's possession of title
Both applicant and respondents are brothers who have lived on the suit land all their lives. The suit land measures 17 acres and the 1st respondent stated during the hearing that he had already obtained title to the six acres pursuant to the decree. In those circumstances the Court was not satisfied that execution would render the appeal nugatory. Both limbs of the Rule 5(2)(b) test having failed, the application was dismissed.
Legal principles established
#- An applicant for stay of execution under Rule 5(2)(b) must establish both an arguable appeal and that the appeal would be rendered nugatory if stay is not granted
- An arguable point need not succeed; it suffices that it is not frivolous
Court orders
#- 1.The notice of motion dated 24th April 2019 seeking stay of execution pending appeal is dismissed
- 2.Costs of the application shall abide the outcome of the intended appeal
- On appeal from
- Environment & Land Court at Embu
- ELC No. 33 of 2015
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules (application for stay of execution pending appeal)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nthiga Munyari v Njeru Munyari & another (Suing as the administrators of the estate of Ituro Korugari) [2019] KECA 208 (KLR)", Case Analysis (2019). Civil Application No. NYR. 52 of 2019 UR 41/19. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/208/eng@2019-11-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.