Joseph Yano v Stephen Kibet Kiptum [2019] KECA 509 (KLR)
The bottom line
#The Court of Appeal halted an eviction from Kitale land pending appeal, confirming that losing possession of property is enough to justify a stay.
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 applicant met the twin requirements for stay of execution under Rule 5(2)(b) - arguability of the appeal and whether it would be rendered nugatory
- 2.Whether the delay in bringing the application for stay was satisfactorily explained
- 3.Whether leave should be granted to amend the memorandum of appeal and file a supplementary record of appeal
Key legal issues
#Jurisdiction under Rule 5(2)(b) for stay of execution
The Court had jurisdiction because a notice of appeal had been filed, and the twin requirements of an arguable appeal and nugatory prejudice were met.
The applicant had filed a notice of appeal, properly invoking the Court's jurisdiction under Rule 5(2)(b). The intended appeal raised serious legal issues including jurisdiction of the trial court, locus standi and burden of proof, so it was not frivolous. The suit property was land and an eviction order had been issued; without a stay the applicant would lose possession and be prejudiced. The delay in bringing the application was also satisfactorily explained, making a stay fair and just.
Leave to amend the memorandum of appeal and file a supplementary record of appeal
Leave was granted because amendments sought before hearing should be freely allowed where no injustice is caused to the other side.
The applicant relied on Eastern Bakery v Castelino, which the Court found 'spot on': amendments before the hearing should be freely allowed if they can be made without injustice, and there is no injustice where the other side can be compensated by costs. The Court was satisfied no injustice would be caused by the amendment, and granted leave, directing the amended memorandum and supplementary record to be filed and served within 14 days.
Legal principles established
#- The twin requirements for stay of execution under Rule 5(2)(b) are that the intended appeal is arguable (not frivolous) and that, unless stayed, the appeal would be rendered nugatory; where an eviction order may be executed and the appellant will lose possession of land, the nugatory limb is satisfied.
- Filing a notice of appeal properly invokes the jurisdiction of the Court under Rule 5(2)(b), and identified issues of jurisdiction, locus standi and burden of proof are serious legal issues rendering an appeal arguable.
- Amendments to pleadings sought before the hearing should be freely allowed if they can be made without injustice to the other side, and there is no injustice if the other side can be compensated by costs.
Court orders
#- 1.Stay of execution of the judgment/decree in Kitale ELC No. 12 of 2012, including the order of eviction, pending the hearing and determination of the appeal
- 2.Leave to amend the memorandum of appeal
- 3.Leave to file a supplementary record of appeal
- 4.The applicant to file and serve the amended memorandum of appeal and supplementary record of appeal within 14 days from the date of the ruling
- 5.Respondent to have costs of the application in any event
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Environment and Land Court of Kenya at Kitale
- ELC Case No. 12 of 2012
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules 2010; sections 3A & 3B of the Appellate Jurisdiction Act
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.
We are therefore satisfied that the applicant has met the twin requirements for granting an order of stay under Rule 5(2)(b) of the Court Rules.
The upshot of the above is that we allow the applicant's motion and issue orders as prayed. The applicant shall file and serve the amended memorandum of appeal and supplementary record of appeal within 14 days from the date hereof. The respondent shall have costs of the application in any event.
Amendments to pleadings sought before the hearing should be freely allowed if they can be made without injustice to the other side, and there is no injustice if the other side can be compensated by costs
Issues in the judgment
#The coram lists the matter as Civil Appeal No. 43 of 2017, but the applicant's submissions refer to the memorandum of appeal 'dated 20th April 2017 in Civil Appeal No 43 of 2018' - an internal inconsistency in the appeal number.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Joseph Yano v Stephen Kibet Kiptum [2019] KECA 509 (KLR)", Case Analysis (2019). Civil Appeal No. 43 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/509/eng@2019-06-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.