Koton Wandabe & another v Lucia Kibui Muchiri [2019] KECA 683 (KLR)
The bottom line
#Kenya's Court of Appeal suspended a land transfer and cancellation order, confirming eviction already executed stays done, but leave to appeal late must be sought separately first.
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 Court's jurisdiction under Rule 5(2)(b) was properly invoked in respect of the judgment of 19th July 2018 and the ruling of 3rd December 2018
- 2.Whether the intended appeal is arguable and not frivolous
- 3.Whether, unless stay of execution is granted, the intended appeal will be rendered nugatory
Key legal issues
#Invocation of the Court's jurisdiction under Rule 5(2)(b)
Jurisdiction under Rule 5(2)(b) was properly invoked in respect of the 19th July 2018 judgment because a notice of appeal had been lodged, but not in respect of the 3rd December 2018 ruling as no appeal or notice of appeal existed against it.
Rule 5(2)(b) presupposes a filed appeal or notice of appeal. The applicants had lodged a notice of appeal against the judgment, so the stay application in respect of that judgment was properly before the Court. As regards the ruling dismissing stay below, the applicants instead sought leave to appeal out of time, which cannot be combined with a Rule 5(2)(b) stay motion; leave must be sought first.
Nature of Rule 5(2)(b) jurisdiction
The power under Rule 5(2)(b) is an original jurisdiction; the Court does not sit on appeal over the lower court's ruling on a similar stay application.
Citing Kagunyi Thande and Equity Bank v West Link Mbo, the Court held that it matters not that the High Court or Environment and Land Court already dealt with a similar stay application. The dismissal of the stay motion below does not fetter this Court's powers, and an intended appeal against that ruling is superfluous and unnecessary.
Arguability of the intended appeal
The intended appeal was arguable and not frivolous, raising issues of the validity of the Land Control Board consent, limitation and fraud.
Even without the irregularly filed draft memorandum of appeal, the ruling under challenge addressed issues such as validity of the Land Control Board consent, limitation and fraud. These are clearly arguable issues, satisfying the first twin condition.
Nugatory aspect
Although vacant possession had already been executed, refusal of stay of further execution could render the appeal nugatory because the respondent might part with possession and the applicants could lose title to a third party.
Applying Kinyanjui v Ketter, the Court weighed contested facts and found the eviction had in fact been executed. However, the decree's other aspects - cancellation of title and transfer - remained unexecuted. If execution proceeded and title vested in a third party, the appeal would be rendered nugatory. Both twin conditions were satisfied.
Legal principles established
#- An application under Rule 5(2)(b) of the Court of Appeal Rules is an original jurisdiction; the Court is not sitting on appeal against a lower court's ruling on a stay application, and the lower court's ruling does not fetter the Court of Appeal's powers
- An applicant under Rule 5(2)(b) must establish both twin conditions: that the intended appeal is arguable and not frivolous, and that unless stay is granted the appeal will be rendered nugatory
- The Court's jurisdiction under Rule 5(2)(b) can only be invoked where an appeal or notice of appeal has already been filed; leave to appeal out of time must be sought first, in a separate application, before a stay application
Court orders
#- 1.Stay of any further execution of the orders of 19th July 2018 pending the hearing and final determination of the appeal
- 2.Title to the suit property to remain with the 1st applicant pending the appeal
- 3.The order for cancellation of the 1st applicant's title and transfer of the suit property to remain suspended until the appeal is determined
- 4.The applicants shall not transfer, charge or in any way interfere with the title to the suit property
- 5.Costs of the motion to abide the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Environment and Land Court at Kitale
- ELC No. 136 of 2007
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules; Article 159(2)(d) of the Constitution; Order 42 Rule 6 of the Civil Procedure Rules
Relief refused
#Leave to appeal out of time against the ruling of 3rd December 2018 and stay of that ruling
The Court's jurisdiction had not been properly invoked in the absence of an appeal or notice of appeal against that ruling; the prayer was improperly brought together with the stay motion
Stay of the aspect of the decree already executed (vacant possession/eviction)
The Court found the eviction had already been executed; only further execution could be stayed
Costs
Costs of the motion shall abide the appeal.
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 power of the Court in dealing with an application under Rule 5(2)(b) of the Court Rules is an original jurisdiction
The first condition is that the intended appeal is arguable and not frivolous, and the second condition is that unless the order of stay of execution is granted the appeal is likely to be rendered nugatory.
We therefore allow the applicants’ motion to the extent of issuing orders staying any further execution of the orders of 19 th July 2018.
we direct that pending the hearing and final determination of the appeal, title to the suit property shall remain with the 1st applicant; and that the order for cancellation of the 1 st applicant’s title and transfer of the suit property shall remain suspended until the appeal is determined.
Costs of the motion shall abide the appeal.
Issues in the judgment
#Internal date inconsistency: the Court refers in places to orders of '19 th July 2019' when the judgment under appeal is dated 19th July 2018
Internal inconsistency in describing the parties' roles in the decree: the 2nd applicant is to give vacant possession, yet the judgment is also recorded as requiring the '1 st respondent' to surrender title and the '1 st applicant' to transfer the suit property
Authority cited with malformed citation: 'Ishmael Kagunyi Thande vs Housing Finance Co of Kenya Ltd. (2006] eKLR' - bracket error in the judgment as printed
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Koton Wandabe & another v Lucia Kibui Muchiri [2019] KECA 683 (KLR)", Case Analysis (2019). Civil Application No. 119 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/683/eng@2019-06-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.