Peterson Murage Kariuki v Peter Kamau Kung’u & 5 others [2019] KECA 903 (KLR)
The bottom line
#Kenya's Court of Appeal refused to pause a land case, ruling that the applicant could still add the vendors as third-party participants in the ongoing trial.
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 under Rule 5(2)(b) of the Court of Appeal Rules
- 2.Whether, if the stay of proceedings sought is not granted, the intended appeal will be rendered nugatory
Key legal issues
#Whether the intended appeal was arguable
The applicant satisfied the first ingredient; the question whether the 5th and 6th respondents are necessary and crucial parties to the ongoing litigation is an arguable point sufficient under Rule 5(2)(b).
The applicant raised eight grounds contending that the trial Judge misapprehended the facts and misapplied the law in declining joinder of the 5th and 6th respondents. Under the settled principles, only one arguable point is needed, and it need not ultimately succeed - it need only be a bona fide issue worthy of consideration that would invite a response from the opposite party.
Whether the intended appeal would be rendered nugatory if stay was not granted
The applicant failed to satisfy the second ingredient; the intended appeal would not be rendered nugatory because the applicant has an alternative remedy in the ongoing proceedings.
The applicant retains an adequate legal remedy: he may institute third-party proceedings against the 5th and 6th respondents in the ongoing ELC proceedings, enabling them to participate fully and tender the alleged crucial evidence, or they may be called as witnesses. Refusing the stay also promotes the overriding objective by allowing the trial to proceed expeditiously rather than being held in abeyance pending appeal.
Application of the overriding objective under sections 3A and 3B of the Appellate Jurisdiction Act
Declining the stay would not defeat but would promote the overriding objective, since the applicant could move to the ELC and institute third-party proceedings, contributing to expeditious progression of the litigation.
The Court associated itself with the distilled principles of the overriding objective, central among which is the speedy disposal of matters before the Court. Holding the ELC proceedings in abeyance pending appeal would prolong the litigation, contrary to the just, expeditious, proportionate and affordable resolution of disputes that sections 3A and 3B enjoin.
Legal principles established
#- An applicant for relief under Rule 5(2)(b) must satisfy both twin principles - that the appeal or intended appeal is arguable and that it will be rendered nugatory if stay is not granted - and both must be satisfied before an order can issue, irrespective of whether the application is opposed.
- An arguable appeal is not one that must succeed, but one which raises a bona fide issue worthy of consideration by the Court; a single arguable point is sufficient.
- An appeal is rendered nugatory where the resulting effect of what is sought to be stayed is likely to be irreversible.
- Lack of opposition to an application does not relieve the applicant of the obligation to satisfy the substantive legal tests for the relief sought.
Court orders
#- 1.The Notice of Motion dated 30th October 2018 seeking stay of further proceedings in Thika ELC Case No. 213 of 2017 is dismissed
- 2.Each party to bear its own costs, the application having been undefended
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Environment and Land Court at Thika
- Thika ELC Case No. 213 of 2017
- Jurisdiction invoked
- Sections 3A and 3B of the Appellate Jurisdiction Act (Cap 9) and Rule 5(2)(b) of the Court of Appeal Rules, 2010
Relief refused
#Stay of any further proceedings in Environment and Land Court, Thika Case No. 213 of 2017 pending the hearing and determination of the intended appeal
The applicant failed to satisfy the second twin ingredient under Rule 5(2)(b); declining the stay would not render the intended appeal nugatory because the applicant can institute third-party proceedings against the 5th and 6th respondents or call them as witnesses, and refusing the stay promotes the expeditious disposal of the litigation under the overriding objective
Costs
Since it was not defended, we order each party to bear its own costs.
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.
The upshot of the above reasoning is that, we find no merit in the application. It is accordingly dismissed. Since it was not defended, we order each party to bear its own costs.
By arguable is not meant an appeal or intended appeal which must succeed but one which raises a bona fide issue worthy of consideration by the Court.
Whether or not an appeal will be rendered nugatory depends on whether or not what is sought to be stayed if allowed to happen is reversible, or if it is not reversible whether damages will reasonably compensate the party aggrieved.
The position in law is that, both prerequisites must be satisfied before an order can issue under the Rule 5(2)(b) procedures, which we are afraid is not the case here.
Issues in the judgment
#The filing date stamp on the application is stated to be erroneous in the judgment itself
The judgment notes a citation error in the applicant's documents regarding the Appellate Jurisdiction Act chapter
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Peterson Murage Kariuki v Peter Kamau Kung’u & 5 others [2019] KECA 903 (KLR)", Case Analysis (2019). Civil Application No. NAI. 317 of 2018 (UR 255/2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/903/eng@2019-02-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.