Rashid K Too v Fred I Imbatu [2019] KECA 901 (KLR)
The bottom line
#The Court of Appeal refused to pause a land transfer order because the landowner still had other property, showing that a strong appeal alone cannot stop execution.
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, if stay of execution is not granted, the intended appeal would be rendered nugatory
Key legal issues
#Whether the intended appeal was arguable
Yes. The memorandum of appeal raised grounds including alleged contravention of section 3(3) of the Contracts Act and absence of Land Control Board consent, which were not frivolous.
The Court examined the memorandum of appeal, noting grounds attacking the propriety of the agreement underlying specific performance and the absence of Land Control Board consent. These raised issues that could not be described as frivolous, meeting the arguability threshold even though arguability alone is insufficient.
Whether the appeal would be rendered nugatory if stay was not granted
No. The applicant still had substantial land beyond the disputed portion, and the impression that his family would be destitute was inaccurate; the nugatory prong was not satisfied.
The Court assessed the material placed before it and found that apart from the disputed 3.8 acres, the applicant still held more land, and the disputed portion was land he had attempted to dispose of. Since both Rule 5(2)(b) conditions must be satisfied cumulatively, failure on the nugatory limb was fatal to the motion.
Legal principles established
#- An applicant under Rule 5(2)(b) must satisfy two cumulative conditions: that the appeal or intended appeal is arguable, and that unless stay or injunction is granted, the success of the appeal will be rendered nugatory.
- An arguable appeal need not be one that must succeed; a single arguable ground suffices.
- In dealing with a Rule 5(2)(b) application the Court of Appeal exercises original and discretionary jurisdiction, not appellate review of the judge's discretion.
Court orders
#- 1.The notice of motion dated 13th August 2018 seeking stay of execution pending appeal is dismissed with costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Environment and Land Court of Kenya at Eldoret
- ELC Case No. 242 of 2015
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules
Relief refused
#Stay of execution of the judgment and decree in Eldoret ELC No. 242 of 2015 pending the hearing and determination of the intended appeal
The applicant failed to establish that the appeal would be rendered nugatory if stay was not granted, one of the two cumulative conditions under Rule 5(2)(b)
Costs
The application was dismissed with costs to the respondent.
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.
For an applicant to succeed he must not only show his appeal or intended appeal is arguable, but also that unless the court grants him an injunction or stay as the case may be, the success of the appeal will be rendered nugatory.
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.
Having failed to establish that his appeal would be rendered nugatory, the applicant’s motion must fail. It is accordingly dismissed with costs.
Issues in the judgment
#The ruling states the memorandum of appeal lists nine grounds but later refers to twelve grounds
The judgment inconsistently renders the applicant's name in the cited authority as 'Ishmael Kagunyi Thande' and 'Ishmael Kangunyi Thande'
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Rashid K Too v Fred I Imbatu [2019] KECA 901 (KLR)", Case Analysis (2019). Civil Application No. 78 of 2018 (UR 52 of 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/901/eng@2019-03-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.