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Court of AppealAllowedCivil Application No. 184 of 2018 (UR. 150/2018)

Joseph Mwangi Kamau (administrator of the Estate of Wilson Kamau Itume (Deceased) v Jacob Ngigi Kanini & 3 others [2019] KECA 897 (KLR)

Court of Appeal of Kenya
8 March 2019
1,523 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Court of Appeal halted the cancellation of a Thika plot title, ruling the appeal over two rival titles was arguable and could be ruined without a stay.

What this practically means

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Executive summary

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This is a single-judgment ruling of the Court of Appeal at Nairobi (Githinji, Visram and J. Mohammed JJ.A) on a Notice of Motion dated 26th June 2018 brought under Rule 5(2)(b) of the Court of Appeal Rules by Joseph Mwangi Kamau, administrator of the estate of Wilson Kamau Itume (deceased). He sought a stay of execution of the judgment, decree and orders of the Environment and Land Court at Nairobi (K. Bor, J) dated 7th May 2018 in ELC No. 72 of 2012, which cancelled his title to LR No. Thika Municipality/Block 24/1299, declared Jacob Ngigi Kanini the owner, awarded damages for trespass, and issued a permanent injunction. The dispute concerned rival allocations of the same plot by the Thika Landless Co-operative Society Ltd, resulting in two competing titles. Applying the settled twin limbs of Rule 5(2)(b), the court found the intended appeal arguable, noting the contention over the validity of two rival titles as a triable ground that need not succeed to meet the threshold. On the nugatory limb, relying on Reliance Bank v Norlake Investments and Mukuma v Abuoga, it accepted that the applicant faced possible eviction with the decree extracted and that damages would not be an adequate remedy. The court allowed the application, staying execution of the judgment and the cancellation of the title deed pending the intended appeal, with costs of the application to abide the outcome of the appeal.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the intended appeal is arguable
  2. 2.Whether the appeal, if successful, would be rendered nugatory in the absence of a stay of execution

Key legal issues

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01

Whether the intended appeal is arguable

Holding

The applicant had an arguable appeal, including the ground that there are two rival titles to the suit property whose validity is in contention

Reasoning

The court refrained from venturing into the merits of the intended appeal, which are for the bench hearing the main appeal. It reiterated that an arguable appeal need not necessarily succeed; it need only be deserving of the court's consideration, and one arguable ground suffices. The existence of two rival titles in the draft memorandum of appeal satisfied this low threshold.

p. 2
02

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

Holding

The applicant demonstrated substantial loss, being apprehensive of eviction with the decree already extracted, and that damages would not be an adequate remedy

Reasoning

Applying Reliance Bank v Norlake Investments and Mukuma v Abuoga, the court considered the conflicting claims of both sides within the circumstances of the case. The applicant's apprehension of eviction, the extracted decree, and the inadequacy of damages demonstrated substantial loss that a stay must prevent by preserving the status quo.

p. 3

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, which does not constitute an appeal from the judge's discretion
  • A single arguable ground of appeal suffices to meet the arguability threshold under Rule 5(2)(b)
  • Substantial loss is the cornerstone of the nugatory-prong enquiry; it is what must be prevented by preserving the status quo
  • Whether an appeal would be rendered nugatory depends on the circumstances of each particular case, considering the conflicting claims of both sides

Court orders

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  1. 1.A stay of execution of the judgment and Orders of 7th May, 2018 is granted and the cancellation of the title deed in respect of LR No. Thika Municipality/Block 24/1299 is stayed pending the hearing and determination of the intended appeal
  2. 2.The costs of this application to abide by the outcome of the appeal

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
majority
On appeal from
Environment and Land Court of Kenya at Nairobi
ELC No. 72 of 2012
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Accordingly, we allow the application dated 26th June, 2018
p. 3disposition
A stay of execution of the judgment and Orders of 7th May, 2018 is granted and the cancellation of the title deed in respect of LR No. Thika Municipality/Block 24/1299 is stayed pending the hearing and determination of the intended appeal.
p. 3final orders - stay of execution
The costs of this application to abide by the outcome of the appeal.
p. 3final orders - costs
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 to meet the threshold that an intended appeal is arguable.
p. 2arguability threshold
Substantial loss is what has to be prevented by preserving the status quo because such loss would render it nugatory.
p. 3substantial loss

Issues in the judgment

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minor

The 1st respondent's replying affidavit is variously dated 8th October 2018 and 5th October 2018 in the judgment

minor

The notice of motion is described as both dated 26th June 2018 and as grounded in an affidavit in support of certificate of urgency deponed by counsel for the applicant, an apparent drafting irregularity

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, "Joseph Mwangi Kamau (administrator of the Estate of Wilson Kamau Itume (Deceased) v Jacob Ngigi Kanini & 3 others [2019] KECA 897 (KLR)", Case Analysis (2019). Civil Application No. 184 of 2018 (UR. 150/2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/897/eng@2019-03-08

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