Seventh Day Adventist Church E.A Ltd (Nairobi East S.D.A. Church) v Strathmore Educational Trust Registered Trustees Kenya & 2 others [2020] KECA 123 (KLR)
The bottom line
#The Court of Appeal refused to halt execution of a land judgment, ruling that the Church had no written agreement and already had stay orders from the trial court.
What this practically means
#Executive summary
#Key legal issues
#Twin principles governing Rule 5(2)(b) applications
The applicant failed to demonstrate either an arguable appeal or that the appeal would be rendered nugatory, since it conceded there was no written agreement for the additional 3 acres.
The court reiterated the settled test that an applicant must show an arguable appeal and nugatory consequences. Although an arguable appeal need not necessarily succeed, the applicant conceded there was no written agreement for the alleged purchase of the additional 3 acres, which title the 2nd respondent did not hold, and gave no demonstration of nugatory consequences. The application therefore failed on both limbs of the test.
Duplicate stay orders where trial court orders subsist
The court declined to grant fresh stay orders where the ELC had already conditionally stayed execution; any violation of those orders must be addressed in that court, not by seeking fresh orders from the Court of Appeal.
The applicant had obtained conditional stay from the ELC (use as parking upon deposit of Kshs 1,000,000). The court held it should not grant other orders of the same kind while those orders subsisted, and that if the orders had been violated by fencing of the parking area, the solution was not to seek fresh orders from this Court. This grounds the dismissal on an additional independent basis.
Legal principles established
#- An applicant under Rule 5(2)(b) must satisfy the twin principles that the appeal or intended appeal is arguable and that, unless the orders sought are granted, the success of the appeal will be rendered nugatory.
- Where a party has already obtained stay of execution orders from the trial court, the Court of Appeal should not grant fresh orders of the same kind; the remedy for violation of the trial court's orders lies there.
Court orders
#- 1.The application dated 14th February 2020 for stay of execution pending appeal is dismissed
- 2.Costs of the application awarded to the respondents
- On appeal from
- Environment and Land Court
- Nairobi ELC Case No. 303 of 2011
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Obuon v Dispute Resolution Committee & 2 others[2022] KECA 970 (KLR)26 Aug 2022applied
Cite this brief
#Cite this brief
Caselaw, "Seventh Day Adventist Church E.A Ltd (Nairobi East S.D.A. Church) v Strathmore Educational Trust Registered Trustees Kenya & 2 others [2020] KECA 123 (KLR)", Case Analysis (2020). Civil Application No. 39 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/123/eng@2020-12-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.