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Court of AppealDismissedCivil Application No. 22 of 2020· [2020] KECA 86 (KLR)

Chairman of the Committee Maseno School for the Deaf & another v Lyston Paul Ngoya Musumba [2020] KECA 86 (KLR)

Court of Appeal
4 December 2020
William OukoW. OukoSKS. Gatembu KairuSKS. ole Kantai
902 words in judgment
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The bottom line

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The Court of Appeal refused to pause a land boundary ruling, saying the intended appeal had no arguable points, so the boundary survey must proceed.

What this practically means

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Executive summary

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This is a single-judgment ruling of the Court of Appeal (Ouko (P), Gatembu and Kantai, JJ.A.) delivered at Nairobi on 4th December 2020 on an application under rule 5(2)(b) of the Court of Appeal Rules seeking stay of execution of the judgment of the Environment and Land Court at Kisumu (Kibunja, J.) dated 16th May 2018 in ELC No. 819 of 2015. The applicants, office bearers of the committee of Maseno School for the Deaf, had been ordered to engage the County Land Registrar and Surveyor to confirm the ground boundary between the respondent's parcel Maseno Block 2/217 (L.R. No. 9341/114) and the applicants' parcel 9341/109, and thereafter to vacate any portion of the respondent's land they occupied, failing which eviction would issue. The applicants contended that their intended appeal was arguable and would be rendered nugatory if stay was not granted; the respondent countered that there was no threat of execution since the boundary exercise had not been done, and cited the applicants' hostility and delay. The Court restated the settled twin principles: an applicant must show the appeal is arguable and that it would be rendered nugatory absent stay, citing Stanley Kangethe Kinyanjui v Tony Ketter & Others. Applying the first limb, the Court found no arguable point because the boundary-confirmation exercise would establish with certainty whether encroachment had occurred. It did not consider the nugatory limb. The application was dismissed with costs to the respondent.

Key legal issues

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01

Whether the intended appeal was arguable

Holding

The intended appeal was not arguable because the impugned order merely directed engagement of government officials to confirm boundaries between adjacent parcels, which would establish with certainty whether the applicants had encroached.

Reasoning

The trial Judge found for the respondent, ordering the parties to engage the County Land Registrar and Surveyor to confirm the ground boundary and, upon confirmation, to vacate the respondent's portion. The Court held that the survey exercise would establish with certainty whether the applicants had encroached, and in those premises could discern no arguable point in the intended appeal. Having failed the first limb, the nugatory limb was not considered.

p. 2

Legal principles established

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  • An applicant under rule 5(2)(b) must first demonstrate that the appeal or intended appeal is arguable (not frivolous) and, secondly, that the appeal would be rendered nugatory absent stay.
  • Where an intended appeal is found not to be arguable, the court need not consider whether the appeal would be rendered nugatory.

Court orders

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  1. 1.The Motion is dismissed
  2. 2.Costs of the application awarded to the respondent

Authorities

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Legislation

  • Court of Appeal RulesRule 5(2)(b)

Cases cited (1)

  • Stanley Kangethe Kinyanjui v Tony Ketter & Others
    [2013] eKLR
On appeal from
Environment and Land Court of Kenya at Kisumu
ELC No. 819 of 2015
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, "Chairman of the Committee Maseno School for the Deaf & another v Lyston Paul Ngoya Musumba [2020] KECA 86 (KLR)", Case Analysis (2020). Civil Application No. 22 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/86/eng@2020-12-04

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