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Court of AppealAllowedCivil Application No. 25 of 2020· [2020] KECA 53 (KLR)

Erick Kipkurgat Kiprono v Patrick Kimutai Kiprono [2020] KECA 53 (KLR)

Court of Appeal
18 December 2020
554 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 stopped the transfer of family land worth five acres until the owner's appeal can be fully heard.

What this practically means

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Executive summary

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This is a single-application ruling of a three-judge bench of the Court of Appeal (Koome, Asike-Makhandia and Musinga, JJ.A.) at Eldoret, delivered on 18th December 2020. The applicant, Erick Kipkurgat Kiprono, sought stay of execution of the decree in Eldoret Environment and Land Court Case No. 290 of 2013 (Ombwayo, J.) pending an intended appeal. The decree, issued on 30th May 2019, directed that land known as L.R. Pioneer Ngeria Block 1 (EATEC) 1426 be subdivided into two equal portions, with 5 acres transferred to the respondent, the applicant's brother. The applicant had filed a notice of appeal the following day, sought certified proceedings, and had his stay application before the trial court dismissed. He argued the appeal was arguable - the land was registered in his name, and the trial court erred in finding a trust and the respondent's contribution - and that subdivision and transfer would render a successful appeal nugatory, possibly leaving the respondent free to dispose of the land. The respondent filed no replying affidavit; due to the Covid-19 pandemic the application proceeded by written submissions. Applying the rule 5(2)(b) principles from Stanley Kangethe Kinyanjui v Tony Ketter & 5 Others, the court found the appeal arguable and the nugatory limb satisfied, and granted stay of execution pending the intended appeal, with costs of the application in the appeal. The decision below was not disturbed at this interlocutory stage.

Key legal issues

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01

Whether the applicant satisfied the twin principles for stay under rule 5(2)(b)

Holding

The court found the appeal arguable from the draft memorandum and that the appeal would be rendered nugatory if the suit property were subdivided and transferred before appeal, and granted stay.

Reasoning

Applying the principles summarised in Stanley Kangethe Kinyanjui v Tony Ketter & 5 Others, the court found from the draft memorandum of appeal that the grounds - that the land was registered in the applicant's name and that the trust and contribution findings were erroneous - were not frivolous. It further found that subdivision and transfer of 5 acres, with possible disposal, would render a successful appeal nugatory, warranting stay.

p. 1

Legal principles established

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  • An arguable appeal for purposes of rule 5(2)(b) need not be one that must succeed; it suffices that it is not frivolous and merits full consideration.

Court orders

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  1. 1.Stay of execution of the trial court's judgment in Eldoret ELC Case No. 290 of 2013 pending hearing and determination of the intended appeal
  2. 2.Costs of the application shall be in the 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
    [2013] eKLR
On appeal from
Environment and Land Court of Kenya at Eldoret
E.L.C. Case No. 290 of 2013
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, "Erick Kipkurgat Kiprono v Patrick Kimutai Kiprono [2020] KECA 53 (KLR)", Case Analysis (2020). Civil Application No. 25 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/53/eng@2020-12-18

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