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Court of AppealAllowedCivil Application No. 109 of 2020· [2020] KECA 91 (KLR)

Attorney General v Mike Maina Kamau [2020] KECA 91 (KLR)

Court of Appeal
4 December 2020
1,437 words in judgment
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The bottom line

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Kenya's Court of Appeal stopped the government from paying a Kshs. 651 million land judgment, ruling taxpayers' money shouldn't be paid out before an appeal is heard.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Nairobi (Karanja, Koome and Murgor JJ.A.) on the Attorney General's notice of motion dated 7th May 2020 seeking stay of execution of the judgment of the Environment and Land Court at Thika (Gacheru, J) delivered on 29th November 2017 in Nairobi ELC Case Number 1303 of 2014. That judgment declared Mike Maina Kamau the absolute and indefeasible owner of L.R. 15045/4, whose house the State had demolished, and awarded him Kshs. 591,372,702 as full replacement value, Kshs. 50,000,000 for pain and suffering and Kshs. 10,000,000 exemplary damages, while dismissing the applicant's counterclaim. The respondent opposed the motion, contending that the Notice of Appeal was filed out of time and without leave, and that a money decree would not be rendered nugatory given his asserted ability to refund. The Court held that its task was the rule 5(2)(b) application, not the pending striking-out application, and applied the settled twin tests of arguability and nugatory effect. It found the intended appeal arguable on the incomplete-house and unconsidered-counterclaim grounds, and held that execution against the Principal Secretary would place taxpayers' money in jeopardy contrary to the public interest, particularly as the respondent's assets were unidentified. Applying the public interest principle from the Munya decision and the utilitarian reasoning of East African Cables, the Court allowed the motion, forestalled payment of the decretal sums, and stayed execution of the judgment and decree pending the intended appeal, with costs in the intended appeal.

Key legal issues

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01

Jurisdiction despite pending challenge to the Notice of Appeal

Holding

The Court declined to decline jurisdiction; what was before it was the rule 5(2)(b) application, not the pending application to strike out the Notice of Appeal.

Reasoning

The respondent argued the Notice of Appeal was filed out of time and without leave, and that an application to strike it out was pending. The Court accepted that a Notice of Appeal is a jurisdictional pre-requisite per the Salat case, but noted that a Notice had in fact been filed and that the striking-out application was separate and pending. The Court confined itself to the stay application before it and proceeded to determine it on the merits.

p. 2
02

Whether the intended appeal is arguable

Holding

The intended appeal was held to be arguable, particularly on the grounds that the trial court awarded full replacement value of an incomplete house and failed to consider the defence and counterclaim.

Reasoning

The applicant attached a draft memorandum of appeal raising grounds including that the Judge awarded the full replacement value of a house still under construction, and that the trial court did not consider the applicant's defence and counterclaim. Applying the Kenya Breweries v Godfrey Odoyo principle, the Court found a possibility that matters that ought to have been considered were not considered, which satisfied the arguability limb.

p. 2
03

Whether the appeal would be rendered nugatory and whether public interest favoured stay

Holding

Payment of the enormous decretal sums would place taxpayers' money in jeopardy and, contrary to the public interest, could render the appeal nugatory; stay was therefore granted.

Reasoning

An order of mandamus had been issued and was being executed against the Principal Secretary, risking payment of Kshs. 591,372,702 plus Kshs. 50,000,000 and Kshs. 10,000,000 awards. The respondent's assertion of ability to refund was undercut because the assets he referred to were not identified and it was not disclosed whether they were within the applicant's reach. Applying the public interest principle from Munya and the utilitarian reasoning in East African Cables, the Court found payment would harm the public interest and granted stay.

p. 2

Legal principles established

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  • A Notice of Appeal is a jurisdictional pre-requisite to an appeal and must be filed outright whether or not leave is required
  • The twin threshold for a rule 5(2)(b) application is an arguable appeal and that the appeal would be rendered nugatory if stay is refused
  • Public interest is a mandatory third consideration in granting stay or conservatory orders, including where payment of decretal sums would place taxpayers' money in jeopardy

Court orders

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  1. 1.Stay of execution of the judgment and decree of the Environment and Land Court pending the hearing and determination of the intended appeal
  2. 2.Forestalling payment of the decretal sums pending the intended appeal
  3. 3.Costs of the application to be costs in the intended appeal

Authorities

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Legislation

  • Appellate Jurisdiction Actsections 3, 3A and 3B
  • Court of Appeal Rules 2010rule 5(2)(b)
  • Constitution of KenyaArticle 159

Cases cited (5)

  • Nicholas Kiptoo Arap Korir Salat vs Independent Electoral and Boundaries Commission & 7 Others
    [2014] eKLR
  • Republic vs Kenya Anti-Corruption Commission & 2 others
    [2009] eKLR
  • Kenya Breweries Ltd vs Godfrey Odoyo
    Civil Appeal No. 127 of 2007
  • Gatirau Peter Munya vs Dickson Mwenda Kithinji
    [2014] eKLR
  • East African Cables Limited vs Public Procurement Complaints, Review and Appeals Board & another
    [2007] eKLR
On appeal from
Environment and Land Court of Kenya at Thika
Nairobi ELC Case Number 1303 Of 2014
Jurisdiction invoked
Sections 3, 3A and 3B of the Appellate Jurisdiction Act and rule 5(2)(b) of the Court of Appeal Rules 2010

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, "Attorney General v Mike Maina Kamau [2020] KECA 91 (KLR)", Case Analysis (2020). Civil Application No. 109 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/91/eng@2020-12-04

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