Johnstone Nyanyuki Menge v Rhoda Mongina Ondoro & 2 others [2020] KECA 106 (KLR)
The bottom line
#Kenya's Court of Appeal refused to protect a land buyer's claim, ruling his intended adverse possession appeal was too weak to justify halting dealings with the property.
What this practically means
#Executive summary
#Key legal issues
#Whether the intended appeal against the finding that the adverse possession suit was premature is arguable
The application failed because the applicant did not demonstrate an arguable appeal; the court was not persuaded the ELC judge erred in holding the 12-year period had not lapsed when the suit was filed
The court applied the settled twin principles governing rule 5(2)(b) applications. An arguable appeal need not necessarily succeed, but on the uncontested facts before the ELC the applicant had not shown the judge erred in finding the suit filed before expiry of 12 years was premature. Having failed on arguability, the court did not consider the nugatory prong and dismissed the application with costs.
Legal principles established
#- An applicant under rule 5(2)(b) must demonstrate both that the appeal (or intended appeal) is arguable and that it will be rendered nugatory unless the orders are granted
Court orders
#- 1.The application dated 31st July 2020 is dismissed
- 2.Costs of the application to the respondents
- On appeal from
- Environment and Land Court
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Johnstone Nyanyuki Menge v Rhoda Mongina Ondoro & 2 others [2020] KECA 106 (KLR)", Case Analysis (2020). Civil Appeal (Application) No. 302 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/106/eng@2020-12-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.