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Court of AppealAllowedCivil Appeal (Application) No. 61 of 2020· [2020] KECA 88 (KLR)

Josephat Lisiolo Lishenga v Dariya Shinyanzwa & 4 others [2020] KECA 88 (KLR)

Court of Appeal of Kenya
4 December 2020
ASAsike-MakhandiaSKS. Gatembu KairuSKS. ole Kantai
665 words in judgment
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The bottom line

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The Court of Appeal halted a landowner's eviction, confirming Kenyans can pause a land judgment while they appeal, without proving the appeal will win.

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 at Kisumu (Asike-Makhandia, Gatembu Kairu and ole Kantai, JJ.A) on the applicant's notice of motion seeking stay of execution of the judgment and decree of the Environment and Land Court at Kakamega (Matheka, J.) delivered on 5th November 2019. The ELC had allowed the 1st and 2nd respondents' suit and ordered the applicant and his co-defendant to vacate Isukha/Shirere/1183 within six months, failing which an eviction order would issue. The applicant lodged a notice of appeal on the day of judgment and later applied for stay pending appeal, contending inter alia that the learned Judge failed to consider his claimed overriding interest over the suit property. Although served, the respondents filed no replying affidavit or submissions. Applying the established twin test - arguability and nugatory value - the court found the intended appeal arguable, noting that an arguable appeal need not necessarily succeed but need only deserve full consideration. It further found, on the applicant's uncontroverted affidavit evidence of exclusive occupation and imminent eviction, that the appeal would be rendered nugatory absent a stay. The court allowed the application and stayed the ELC judgment and all consequential orders pending the hearing and determination of the appeal; costs of the application were ordered to abide the outcome of the appeal. The ruling does not disturb the decision below; it preserves the status quo pending the substantive appeal.

Key legal issues

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01

Arguability of the intended appeal

Holding

The intended appeal was arguable, in particular on whether the trial Judge failed to consider the applicant's claimed overriding interest over the suit property.

Reasoning

The court applied the settled twin test for stay under rule 5(2)(b). It found a grievance in the memorandum of appeal - the failure to consider an overriding interest - sufficient to show the appeal was not frivolous but deserving of full consideration, without needing to establish it would ultimately succeed.

p. 1
02

Nugatory value of the appeal

Holding

Since the applicant's eviction was imminent, the appeal would be rendered nugatory unless the ELC judgment was stayed in the meantime.

Reasoning

The applicant deposed that he exclusively occupied and utilised the suit property, the judgment creditors had never been in possession, and eviction would render him homeless and destitute. On that uncontroverted material (no replying affidavit or submissions were filed), the court was satisfied the nugatory limb was met.

p. 2

Legal principles established

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  • An applicant for stay under rule 5(2)(b) must demonstrate that the intended appeal is arguable and that it will be rendered nugatory if stay is not granted
  • An arguable appeal need not be one that must succeed; it suffices that it is deserving of full consideration by the Court

Court orders

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  1. 1.The judgment of the ELC delivered on 5th November 2019 and all consequential orders are stayed pending the hearing and determination of the applicant's appeal in Kisumu Civil Appeal No. 61 of 2020
  2. 2.Costs of the application shall abide the outcome of the appeal

Authorities

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Cases cited (2)

  • Co-operative Bank of Kenya Limited vs. Banking Insurance & Finance Union (Kenya)
    [2015] eKLR
  • China Road & Bridge Corporation (K) Ltd vs. African Gas & Oil Co. Ltd & 3 others
    [2016] eKLR
On appeal from
Environment and Land Court at Kakamega
ELC Case No. 250 of 2016
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules (implied by the nature of the application for stay pending appeal); not expressly cited in the ruling

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, "Josephat Lisiolo Lishenga v Dariya Shinyanzwa & 4 others [2020] KECA 88 (KLR)", Case Analysis (2020). Civil Appeal (Application) No. 61 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/88/eng@2020-12-04

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