James Mugo Waweru v Bernard Keiroh Kamau [2019] KECA 718 (KLR)
The bottom line
#Kenya's Court of Appeal stopped the eviction of a long-term occupant, confirming that stay of execution applications must pass two tests: arguable appeal and risk of a pointless outcome.
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 is arguable
- 2.Whether the intended appeal would be rendered nugatory if the stay of execution is not granted
Key legal issues
#Whether the intended appeal is arguable
The Court held that the grounds in the draft memorandum of appeal were all arguable irrespective of their ultimate success, satisfying the first prerequisite.
The applicant's draft memorandum raised eight grounds, including that the trial judge misdirected herself on the facts and law, failed to give primacy to his earlier share certificate, failed to find the respondent's lease was acquired illegally, unprocedurally or through a corrupt scheme, ignored orders in HCCC No. 3017 of 1990, and erred on adverse possession. Since one bona fide arguable ground suffices, the Court was satisfied the first test was met.
Whether the intended appeal would be rendered nugatory if stay is denied
The Court held the appeal would be rendered nugatory because imminent eviction would have been executed if the applicant ultimately succeeded, and the respondent might dispose of the property to third parties.
The stay granted by the ELC had lapsed, exposing the applicant to imminent eviction from property he had occupied for many years, a fact corroborated by the respondent's own deposition. There was no undertaking from the respondent that he would not part with possession, and counsel's assurance from the bar created no binding obligation. Disposition to third parties would put the property beyond the applicant's reach. Both prerequisites being satisfied, the application was allowed.
Legal principles established
#- An applicant under Rule 5(2)(b) must satisfy the twin tests of an arguable appeal and that the appeal would be rendered nugatory if interim relief is denied; both must be met.
- The discretion under Rule 5(2)(b) is exercised as original and discretionary jurisdiction, not as an appeal from the trial judge's discretion, and is wide and unfettered provided it is just to do so.
- A single bona fide arguable ground suffices to establish arguability, and an arguable appeal need not be one that must succeed.
- An assurance given only from the bar does not create a binding legal obligation capable of being sanctioned between the parties in the event of breach.
Court orders
#- 1.Stay of execution of the judgment and decree of the ELC (K. Bor, J) dated 17th April 2018 in Nairobi ELC No. 215 of 2014 granted in terms of prayer (2) of the application, pending the hearing and determination of the intended appeal
- 2.Costs of the application to abide the outcome of the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Environment and Land Court at Nairobi
- ELC No. 215 of 2014
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules, with section 3A of the Appellate Jurisdiction Act (Cap 9)
Relief refused
#Respondent's proposal for a conditional stay requiring the applicant to deposit Kshs. 20,000 monthly as mesne profit
The application was allowed in terms of prayer (2); no conditional stay was ordered, and the applicant cited financial constraints against such a condition.
Costs
The costs of the application to abide the outcome of 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 principle is that, the Court has to decide first, whether the applicant has presented an arguable appeal, and second, whether the intended appeal would be rendered nugatory if the interim relief sought were denied.
In light of the above reasoning, we are also satisfied that the threshhold on the 2nd prerequisite has been satisfied. We therefore find merit in the application. It is allowed in terms of prayer (2) thereof. The costs of the application to abide the outcome of the appeal.
Issues in the judgment
#The respondent's replying affidavit is described as deposed on 7th March 2019, yet the application was dated and filed on 12th July 2018; the affidavit date post-dating the application by several months is unusual but not internally contradictory as to the court's reasoning.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "James Mugo Waweru v Bernard Keiroh Kamau [2019] KECA 718 (KLR)", Case Analysis (2019). Civil Application No. NAI 202 of 2018 (UR.162 of 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/718/eng@2019-05-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.