Salome Naivanui Keen & 7 others v Alice Wanjiru Wanjohi administratix of the Estate of Francis Wanjohi Ndirangu (Deceased) [2019] KECA 856 (KLR)
The bottom line
#Kenya's Court of Appeal halted an eviction, confirming a stay application stays alive even if the appeal record was filed late.
What this practically means
#Executive summary
#Key legal issues
#Whether the application is competent despite the record of appeal having been filed out of time
The application is properly before the Court since a notice of appeal was filed; validity of the notice need not be determined at the Rule 5(2)(b) stage.
The respondent argued that the record of appeal was filed out of time contrary to Rule 82, making the application incompetent. The Court relied on National Industrial Credit Bank v Wasike, holding that the validity of a notice of appeal is not determined on a Rule 5(2)(b) application; what is important is that a notice has been filed. Since the applicants filed a notice of appeal dated 19th February, 2013, the application was properly before the Court.
Whether the intended appeal is arguable
The intended appeal is arguable; a single arguable ground suffices and an arguable appeal need not succeed.
The applicants' draft memorandum of appeal raised grounds including that the learned Judge erred in dismissing their assertion of open, independent and uninterrupted occupation for over 12 years, and that the original owners did not pass good title. Guided by Stanley Kang'ethe Kinyanjui v Tony Keter and Dennis Mogambi Mang'are, the Court held the grounds were not frivolous and deserved the Court's consideration, while avoiding the merits.
Whether the appeal would be rendered nugatory if stay is not granted
The appeal would be rendered nugatory if eviction proceeds, as the substratum of the appeal would be lost.
Applying Reliance Bank v Norlake Investments and Mukuma v Abuoga, the Court weighed the conflicting claims of both sides. The applicants, born and living on the suit property for over 40 years, faced eviction and demolition of homes and rental properties, rendering them destitute. Substantial loss is the cornerstone of the jurisdiction, and executing the eviction order would destroy the subject matter of the appeal.
Legal principles established
#- The validity or otherwise of a notice of appeal need not be determined when considering an application under Rule 5(2)(b); what matters is that a notice of appeal has been filed.
- Rule 5(2)(b) empowers the Court to preserve the subject matter of an appeal that has been filed or is intended to be filed.
- An applicant under Rule 5(2)(b) must show the appeal is arguable (not frivolous) and that it will be rendered nugatory if stay is not granted; a single arguable ground suffices.
Court orders
#- 1.A stay of execution of the judgment and Decree of (Ouko, J as he then was) in HCCC No. 56 of 2008 delivered on 11th February, 2013 is granted pending the hearing and determination of the intended appeal
- 2.The costs of this application to abide by the outcome of the appeal
- On appeal from
- High Court of Kenya at Nairobi
- HCCC No. 56 of 2008
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Salome Naivanui Keen & 7 others v Alice Wanjiru Wanjohi administratix of the Estate of Francis Wanjohi Ndirangu (Deceased) [2019] KECA 856 (KLR)", Case Analysis (2019). Civil Application No. 326 of 2013 (UR. 240/2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/856/eng@2019-03-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.