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Court of AppealAllowedCivil Application No. 128 of 2018 (UR. 108/2018)

Presbyterian Church of East Africa (Uthiru Church) & another v Wanyiri Kihoro & 3 others [2019] KECA 857 (KLR)

Court of Appeal
22 March 2019
2,108 words in judgment
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The bottom line

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Kenya's Court of Appeal paused the eviction of a Uthiru church from disputed land until its adverse possession appeal is fully heard.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Nairobi (Visram, Nambuye and J. Mohammed JJ.A) on a Notice of Motion dated 27th April 2018 brought under Rule 5(2)(b) of the Court of Appeal Rules, seeking stay of execution of the judgment and decree of the Environment and Land Court at Nairobi (E. A. Obaga, J) dated 9th April 2018 in ELC No. 884 of 2013. The ELC had found for the administrators of the estate of the late Dr. Wanjiru Kihoro, registered proprietors of LR No. Dagoretti/Uthiru/T 382, ordering eviction of the Presbyterian Church of East Africa (Uthiru Church) and removal of its structures within 90 days, removal of a restriction and caution, compensatory and exemplary damages, interest and apportioned costs. The applicants, who had counterclaimed on the basis of adverse possession, argued the appeal (Civil Appeal No. 303 of 2018) was arguable on when time begins to run for adverse possession and whether a demand letter interrupts such a claim, and that eviction would demolish a church standing on the land and render the appeal nugatory. Applying the established twin-test under Rule 5(2)(b), the court found the appeal arguable and that substantial loss would follow execution. The court allowed the application, stayed execution of the decree and judgment pending hearing and determination of the appeal, and ordered the costs of the application to abide the outcome of the appeal. The decision is an interlocutory ruling, not a determination of the appeal itself.

Key legal issues

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01

Whether the intended appeal is arguable

Holding

The application satisfied the arguability limb on grounds including when time begins to run for adverse possession and whether a demand letter interrupts adverse possession.

Reasoning

The court applied the settled test that an arguable appeal is not one that must succeed but one deserving of the court's consideration, and a single arguable ground suffices. The draft memorandum raised the onset of time for adverse possession and the effect of a demand letter as interruption. The court deliberately avoided delving into the merits, which it reserved for the bench hearing the main appeal.

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02

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

Holding

Execution of the eviction order would destroy the substratum of the appeal, so the nugatory limb was satisfied and the balance of hardship favoured preservation of the status quo.

Reasoning

Drawing on Reliance Bank v Norlake and Mukuma v Abuoga, the court held that substantial loss is the cornerstone of the Rule 5(2)(b) jurisdiction and must be assessed against the circumstances of each case, weighing conflicting claims. Since eviction and demolition of the church would defeat the appeal if it succeeded, and applying the overriding objective to balance the hardships of both parties, stay was warranted.

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Legal principles established

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  • In dealing with a Rule 5(2)(b) application, the Court of Appeal exercises original and discretionary jurisdiction, not an appellate review of the judge's discretion.
  • A single arguable ground suffices; the ground need not succeed, only not be frivolous.
  • An applicant under Rule 5(2)(b) must establish both that the appeal is arguable and that it will be rendered nugatory if stay is not granted.

Court orders

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  1. 1.A stay of execution of the Decree and Judgment of E. A. Obaga, J in Nairobi ELC Case Number 884 of 2013 delivered on 9th April, 2018 granted pending the hearing and determination of Civil Appeal No. 303 of 2018
  2. 2.The costs of the application to abide by the outcome of the appeal
On appeal from
Environment and Land Court of Kenya at Nairobi
ELC No. 884 of 2013
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, "Presbyterian Church of East Africa (Uthiru Church) & another v Wanyiri Kihoro & 3 others [2019] KECA 857 (KLR)", Case Analysis (2019). Civil Application No. 128 of 2018 (UR. 108/2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/857/eng@2019-03-22

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.