Danson Munene Kibetu v Edward Njeru & 2 others [2020] KECA 73 (KLR)
The bottom line
#The Court of Appeal refused to protect a Kerugoya plot pending appeal because the applicant could show no arguable case on ownership.
What this practically means
#Executive summary
#Key legal issues
#Arguability of the intended appeal in a rule 5(2)(b) application
The intended appeal was not arguable because the record showed the applicant never held title to the suit land, which had been registered in the 1st respondent's name and transferred to the 2nd and 3rd respondents.
The court reviewed the applicant's supporting affidavit and draft memorandum. The undisputed facts showed registration of the suit land in the 1st respondent's name in April 2002 and subsequent transfers. Against this, the applicant could identify no arguable point on legal ownership, so the first limb of the rule 5(2)(b) test failed and the court did not need to consider the nugatory limb.
Whether the nugatory limb needed consideration
Having found the appeal not arguable, the court declined to consider whether the intended appeal would be rendered nugatory absent stay.
The court applied the settled two-limb test from Stanley Kangethe Kinyanjui v Tony Ketter & Others: arguability first, nugatory second. Because the applicant failed the first limb, the second limb fell away, making it unnecessary to assess whether the appeal would be rendered nugatory absent the injunction sought.
Legal principles established
#- In a rule 5(2)(b) application an applicant must demonstrate that the appeal or intended appeal is arguable (not frivolous) and that the appeal would be rendered nugatory absent stay or injunction.
Court orders
#- 1.The Motion dated under rules 1(2) and 5(2)(b) of the Court of Appeal Rules is dismissed
- 2.No order on costs as the respondents did not respond to the Motion
- On appeal from
- Environment and Land Court of Kenya at Kerugoya
- ELC Case No. 26 of 2016
- Jurisdiction invoked
- Rules 1(2) and 5(2)(b) of the Court of Appeal Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Danson Munene Kibetu v Edward Njeru & 2 others [2020] KECA 73 (KLR)", Case Analysis (2020). Civil Application No. 31 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/73/eng@2020-12-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.