Jackton Ogula Aduogo v Francis Odhiambo Oturu (suing as the administrator of the Estate of the Late Samwel Oturu Aduogo) [2019] KECA 622 (KLR)
The bottom line
#The Court of Appeal stopped a family's eviction from disputed Kisumu land until the appeal is heard, but only if they file it within 60 days.
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 raises arguable issues
- 2.Whether, absent stay, the intended appeal would be rendered nugatory
- 3.Whether the application was brought after inordinate delay or was an abuse of process given the earlier dismissal of a similar application in the trial court
Key legal issues
#Arguability of the intended appeal
The intended appeal raised arguable issues, notably the respondent's locus standi and the existence of a trust
The memorandum of appeal raised several grounds, including the respondent's locus standi to prosecute the suit and the existence of a trust. The Court found these issues pertinent and arguable and not frivolous, thus satisfying the first limb of the Rule 5(2)(b) test.
Nugatory aspect
Execution of the decree would render the intended appeal nugatory, as it would evict the applicant and risk the suit property passing to third parties
The decree provided for nullification of the subdivision, cancellation of new titles, and eviction of the applicant and his family. If the applicant lost possession, it might fall into the hands of a third party, putting the subject matter of the suit at risk and causing irreparable loss.
Effect of a prior dismissed stay application in the trial court and delay
The delay was satisfactorily explained, and the prior dismissal of a similar application in the trial court does not bar the Rule 5(2)(b) application
The applicant had first sought stay in the trial court, whose ruling was delivered on 11th October 2018, after which he filed the present application. The Court held its Rule 5(2)(b) jurisdiction is original and unaffected by the lower court's dismissal of a similar application.
Legal principles established
#- An applicant under Rule 5(2)(b) must satisfy the twin principles of arguability and the nugatory aspect
- The Court of Appeal's jurisdiction under Rule 5(2)(b) is an original jurisdiction invoked by filing a notice of appeal, and is not affected by the dismissal of a similar application by the lower court
Court orders
#- 1.Stay of execution of the judgment, decree and orders of the Environment and Land Court dated 22nd November 2017 granted pending the hearing and determination of the intended appeal
- 2.Costs of the motion to be costs in the appeal
- 3.Applicant to file his memorandum of appeal and record of appeal within 60 days from the date of the ruling, failing which the order of stay of execution shall lapse
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Environment and Land Court of Kenya at Kisumu
- ELC No. 830 of 2015
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules; sections 3A and 3B of the Appellate Jurisdiction Act; Article 159 of the Constitution of Kenya
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.
It is now well settled that in order for an application under Rule 5(2)(b) of the Court of Appeal Rules to succeed an applicant must satisfy the twin principles of arguability and the nugatory aspect.
the jurisdiction of this Court under Rule 5(2)(b) of the Court Rules is an original jurisdiction, which is invoked by the filing of a notice of appeal under section 75 of the Appellate Jurisdiction Act. This jurisdiction is therefore not affected by the fact that a similar application has been dismissed by the lower court.
we allow the applicant’s motion for stay of execution of the judgment issued on 22 nd November 2017 pending the hearing and determination of the intended appeal.
the applicant shall take all appropriate action to file his memorandum of appeal and record of appeal within 60 days from the date hereof, failing which the order of stay of execution shall lapse.
Issues in the judgment
#The coram lists the third judge as 'J. MOHAMMED, JJ.A' while the signature block reads 'J. MOHAMMED ... JUDGE OF APPEAL'; the styles are consistent, no substantive conflict.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Jackton Ogula Aduogo v Francis Odhiambo Oturu (suing as the administrator of the Estate of the Late Samwel Oturu Aduogo) [2019] KECA 622 (KLR)", Case Analysis (2019). Civil Application No. 95 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/622/eng@2019-06-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.