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Court of AppealAllowedCivil Application No. 326 of 2013 (UR. 240/2013)· [2019] KECA 856 (KLR)

Salome Naivanui Keen & 7 others v Alice Wanjiru Wanjohi administratix of the Estate of Francis Wanjohi Ndirangu (Deceased) [2019] KECA 856 (KLR)

Court of Appeal
22 March 2019
1,939 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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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

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Executive summary

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This was an application under Rule 5(2)(b) of the Court of Appeal Rules by eight applicants seeking stay of execution of the judgment and decree of the High Court (Ouko, J) delivered on 11th February, 2013 in HCCC No. 56 of 2008, which dismissed their suit with costs and declared the respondent entitled to ownership and exclusive possession of land parcels LR. 453/3/1 and LR. 453/3/2, ordering them to vacate within 90 days or face eviction. An earlier stay application in the High Court (H. A. Omondi, J) had been dismissed on 8th November, 2013. The respondent opposed, contending that no competent appeal existed because the record of appeal was filed out of time contrary to Rule 82 and no extension of time had been sought. The Court held, following National Industrial Credit Bank v Wasike and Safaricom v Ocean View Beach Hotel, that the validity of a notice of appeal need not be determined on a Rule 5(2)(b) application; since a notice of appeal had been filed, the application was properly before it. Applying the settled two-limb test - arguability and nugatory effect - from Trust Bank v Investech Bank, Stanley Kang'ethe Kinyanjui v Tony Keter, Mukuma v Abuoga and other authorities, the Court found the grounds in the draft memorandum of appeal (open and uninterrupted occupation for over 12 years and want of good title) arguable, and that eviction would destroy the substratum of the appeal, rendering it nugatory. The Court allowed the application, granted stay of execution pending hearing and determination of the intended appeal, and ordered costs of the application to abide the outcome of the appeal. The ruling binds the High Court on the competency of Rule 5(2)(b) applications notwithstanding a late record of appeal.

Key legal issues

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01

Whether the application is competent despite the record of appeal having been filed out of time

Holding

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.

Reasoning

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.

p. 2
02

Whether the intended appeal is arguable

Holding

The intended appeal is arguable; a single arguable ground suffices and an arguable appeal need not succeed.

Reasoning

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.

p. 3
03

Whether the appeal would be rendered nugatory if stay is not granted

Holding

The appeal would be rendered nugatory if eviction proceeds, as the substratum of the appeal would be lost.

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 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. 2.The costs of this application to abide by the outcome of the appeal

Authorities

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Legislation

  • Court of Appeal RulesRule 5(2)(b)
  • Court of Appeal RulesRule 82

Cases cited (8)

  • National Industrial Credit Bank Limited v Aquinas Francis Wasike & another
    [2006] eKLR
  • Safaricom Limited V Ocean View Beach Hotel Limited & 2 Others
    Civil Application No. 327 of 2009 (UR)
  • Stanley Kang'ethe Kinyanjui v Tony Keter & 5 Others
    [2013] eKLR
  • Trust Bank Limited and Another v. Investech Bank Limited and 3 Others
    Civil Application Nai. 258 of 1999 (unreported)
  • Dennis Mogambi Mang'are V. Attorney General & 3 Others
    Civil Application No. NAI. 265 of 2011 (UR 175/2011)
  • Reliance Bank Ltd Vs. Norlake Investments Ltd
    [2002] I EA 227
  • Mukuma vs Abuoga
    [1988] KLR 645
  • Ishmael Kangunyi Thande V Housing Finance Company of Kenya Limited
    Civil Application No. Nai 157 of 2006 (unreported)
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

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Practical implications

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Frequently asked questions

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Cite this brief

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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.