Elias Mbau Ndungu & 19 others v Grace Jendeka Lusiola [2019] KECA 879 (KLR)
The bottom line
#The Court of Appeal halted eviction and demolition of twenty families' homes until their land appeal is heard, because destroying the homes would make the appeal pointless.
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, unless stay of execution is granted, the intended appeal will be rendered nugatory
Key legal issues
#Whether the intended appeal is arguable under Rule 5(2)(b)
The intended appeal was arguable because the applicants raised grounds, including whether they were innocent purchasers for value without notice, that were not frivolous.
The court restated the settled test that an arguable ground need not succeed but must not be frivolous, and that a single arguable ground suffices. The draft memorandum raised the question whether the applicants were innocent purchasers for value without notice, which the court found merited serious consideration.
Whether the intended appeal would be rendered nugatory absent stay
Demolition of the applicants' permanent residential homes on the suit property would constitute substantial loss rendering the appeal nugatory, warranting stay.
Relying on Reliance Bank v Norlake Investments and Mukuma v Abuoga, the court held that nugatory factors are case-specific and that substantial loss is the cornerstone. The applicants had lived on the land for about 10 years and faced demolition of permanent homes and irreparable loss if execution proceeded.
Legal principles established
#- An application under Rule 5(2)(b) invokes the Court of Appeal's original and discretionary jurisdiction, which does not constitute an appeal from the judge's discretion; a single non-frivolous arguable ground suffices, and substantial loss is the cornerstone of the nugatory-appeal test.
Court orders
#- 1.A stay of execution of the judgment and Decree of 30th May, 2018 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
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Environment and Land Court of Kenya at Nairobi
- ELC No. 650 of 2012
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules
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.
A stay of execution of the judgment and Decree of 30th May, 2018 is granted pending the hearing and determination of the intended appeal.
The costs of this application to abide by the outcome of the appeal.
That in dealing with Rule 5(2)(b), the Court exercises original and discretionary jurisdiction and that exercise does not constitute an appeal from the judge's discretion to this Court.
The first issue for our consideration is whether the intended appeal is arguable. This Court has often stated that an arguable ground of appeal is not one which must succeed but it should be one which is not frivolous; a single arguable ground of appeal would suffice
Issues in the judgment
#The respondent's two notices of preliminary objection (sub judice and late filing of notice of appeal) were neither expressly determined nor mentioned in the final orders; the court noted only that counsel did not attend to argue them.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Elias Mbau Ndungu & 19 others v Grace Jendeka Lusiola [2019] KECA 879 (KLR)", Case Analysis (2019). Civil Application No. 181 of 2018 (UR. 147/2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/879/eng@2019-03-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.