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Court of AppealDismissedCivil Appeal No. 34 of 2018· [2019] KECA 864 (KLR)

James Mutua Mawathe & 6 others v Attorney General & another [2019] KECA 864 (KLR)

Court of Appeal
8 March 2019
William OukoW. OukoDMD.K. MusingaSKS. Gatembu Kairu
831 words in judgment
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The bottom line

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The Court of Appeal refused to pause an eviction ruling, finding the residents' planned appeal raised no genuinely arguable point.

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 (Ouko, P., Musinga and Gatembu, JJ.A) dismissing an application under Rule 5(2)(b) of the Court of Appeal Rules for stay of execution of a ruling of the Environment and Land Court at Nairobi (Obaga, J.) dated 25 January 2018 in ELC Petition No. 12 of 2017. The seven applicants, suing on their own behalf and on behalf of residents and traders in Matopeni Slum in Starehe, Nairobi, sought an unusually framed relief: a preservation order maintaining the status quo and staying execution of the ruling pending an intended appeal. The ruling below had dismissed their application for conservatory orders to restrain eviction and demolition, holding that they had failed to establish any rights capable of protection, had not identified the property with certainty, and had disclosed no prima facie case. Restating the settled twin principles - arguability and nugatory-ness - the court applied Stanley Kangethe Kinyanjui v Tony Ketter & 5 others and emphasized that both limbs must be satisfied and that no definitive findings of fact or law may be made at this stage. The court concluded that the intended appeal was not arguable: the basis of the claim was unclear, the applicants identified the land inconsistently, and the vacation notice came from the OCPD of Starehe on behalf of the Kenya Police Service, with some occupants apparently in police houses. The application was dismissed with costs in the intended appeal. The decision binds subordinate courts and tribunals on the Rule 5(2)(b) test as restated.

Key legal issues

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Whether the intended appeal against the dismissal of an application for conservatory orders is arguable

Holding

The intended appeal was not arguable; the Judge below had found the threshold for interim conservatory orders unmet and the basis of the applicants' claim unclear.

Reasoning

The applicants' claim was unclear: they asserted peaceful occupation since 1987 but identified the property inconsistently, some citing L.R 209/16779 Pumwani and others 'Plot C General Waruinge'. The notice to vacate was issued by the OCPD of Starehe on behalf of the Kenya Police Service, and some occupants appeared to be in police houses. The court, without making definitive findings, held that no single bona fide arguable ground was disclosed and, having failed the first limb, the application necessarily failed.

p. 2

Legal principles established

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  • An applicant under Rule 5(2)(b) must demonstrate both that the appeal is arguable and that it would be rendered nugatory if interim relief is denied; satisfying one limb is insufficient.
  • On arguability, it is sufficient if a single bona fide arguable ground is raised; the appeal need not necessarily succeed, only be non-frivolous and deserving of full argument.
  • In determining a Rule 5(2)(b) application the court must not make definitive or final findings of fact or law.

Court orders

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  1. 1.Application for stay of execution dismissed
  2. 2.Costs of the application to be in the intended appeal

Authorities

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Legislation

  • Court of Appeal RulesRule 5(2)(b)

Cases cited (1)

  • Stanley Kangethe Kinyanjui V Tony Ketter & 5 others
    Civil Application 31 of 2012
On appeal from
Environment and Land Court at Nairobi
ELC Petition No. 12 of 2017
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, "James Mutua Mawathe & 6 others v Attorney General & another [2019] KECA 864 (KLR)", Case Analysis (2019). Civil Appeal No. 34 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/864/eng@2019-03-08

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