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Case Brief · caselaw.co.ke
Court of AppealAllowedCivil Appeal (Application) No. 131 of 2019· [2020] KECA 58 (KLR)

Konene Narankaik v Rehema Ahmed (Administrator Estate of Ahmed Abdi Murasa & 1 other

Court of Appeal
18 December 2020
830 words in judgment
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The bottom line

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The Court of Appeal halted enforcement of a land judgment, ruling a Kshs 80 million building could be lost while the appeal was decided.

What this practically means

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Executive summary

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This was a single-judge-panels' ruling of the Court of Appeal at Nakuru (Ouko, P, Koome and Gatembu, JJ.A) on an application under Rule 5(2)(b) of the Court of Appeal Rules for stay of execution of the judgment of the Environment and Land Court at Narok (Mohammed Kullow, J) delivered on 19th July 2019 in Narok ELC Case No. 16 of 2017 (OS). The ELC had found that Rehema Ahmed, administrator of the estate of Ahmed Abdi Murasa, had established adverse possession against the applicant, Konene Narankaik, in respect of title number Narok/Township/163, the respondent having been in possession for more than 12 years. The applicant had already filed an appeal against that judgment. Applying the settled twin principles in Ishmael Kagunyi Thande v Housing Finance Company Limited, the Court first found the intended appeal arguable, identifying as a live issue whether the judge had correctly concluded that all ingredients of adverse possession were present. On the nugatory limb, the Court noted the substantial development - a building said to have cost Kshs. 80 million - which the respondent conceded existed. Guided by Reliance Bank Ltd v Norlake Investments Ltd, the Court held that refusal of stay would cause hardship out of proportion to the respondent's suffering pending appeal. The Court allowed the application and stayed execution of the ELC judgment pending hearing and determination of the appeal, with costs of the application to abide the outcome of the appeal. The lower court's judgment itself was not disturbed.

Key legal issues

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01

Whether the intended appeal was arguable

Holding

The intended appeal was arguable, particularly on whether the judge correctly concluded that all ingredients of adverse possession were established.

Reasoning

Guided by the settled principle that an arguable appeal need not succeed, only merit full consideration, the Court found at least one bona fide issue: whether the ELC judge rightly concluded all ingredients of adverse possession were present. That single arguable point sufficed on the first limb of the Rule 5(2)(b) test.

p. 2
02

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

Holding

The nugatory test was satisfied because the applicant had constructed a substantial building said to be worth Kshs. 80 million which he risked losing.

Reasoning

Photographs exhibited showed a substantial development on the property, which the respondent conceded existed albeit built with knowledge of the title contest. Following Reliance Bank Ltd v Norlake Investments Ltd, refusal of stay would cause hardship out of proportion to any suffering the respondent might endure pending the appeal, warranting preservation of the property.

p. 2

Legal principles established

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  • An applicant under Rule 5(2)(b) must satisfy the twin tests: the appeal or intended appeal must be arguable, and the appeal if successful will be rendered nugatory unless stay or injunction is granted.
  • An arguable appeal is not one that must necessarily succeed but one that is deserving of full consideration by the Court.

Court orders

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  1. 1.Stay of execution of the judgment in Narok ELC Case Number 16 of 2017 pending the hearing and determination of the appeal
  2. 2.Costs of the application to abide the outcome of the appeal
On appeal from
Environment and Land Court at Narok
Narok ELC Case No. 16 of 2017 (OS)
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, "Konene Narankaik v Rehema Ahmed (Administrator Estate of Ahmed Abdi Murasa & 1 other", Case Analysis (2020). Civil Appeal (Application) No. 131 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/58/eng@2020-12-18

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