George Mwicigi Githengi & another v John Baptista Murira Kweri [2020] KECA 130 (KLR)
The bottom line
#Kenya's Court of Appeal refused to pause a land case dismissed as res judicata, confirming you cannot get a stay of a negative order.
What this practically means
#Executive summary
#Key legal issues
#Whether the intended appeal was arguable
The applicants' grounds were not arguable. Although they argued the claim sounded in adverse possession rather than trust, the court was not persuaded, on the face of the grounds, that the learned Judge erred in entertaining the preliminary objection on res judicata.
The court applied the Rule 5(2)(b) principles from Stanley Kengethe Kinyanjui v Tony Ketter. It noted the parties had litigated over the same suit property before the Chief Magistrate's Court and the ELC, and that the trial Judge dismissed the suit as res judicata on the public-policy principle that parties cannot litigate in instalments. Whether the claim was framed in trust or adverse possession, the court found no arguable ground warranting interference.
Whether the appeal would be rendered nugatory
The nugatory limb did not arise because the order appealed against was negative - a dismissal of the suit with costs - requiring no party to do or refrain from doing anything, and thus there was nothing to execute or stay.
Relying on Western College of Arts and Applied Sciences v Oranga, the court held that where the High Court (or trial court) merely dismisses a suit with costs, the only execution possible is in respect of costs, and there is nothing in such a judgment for the Court of Appeal on a stay application to enforce or restrain by injunction. The inquiry into nugatory prejudice was therefore unnecessary once arguability failed.
Legal principles established
#- To succeed on a Rule 5(2)(b) application an applicant must demonstrate that the appeal or intended appeal is arguable, and secondly that it will be rendered nugatory if the appeal succeeds.
- A single arguable ground suffices to show an intended appeal is arguable, but the ground must not be frivolous.
- Where the order sought to be appealed is a negative order dismissing the suit, requiring no party to do or refrain from doing anything, there is nothing to stay and the nugatory limb cannot be satisfied.
Court orders
#- 1.The application for stay of the orders of the Environment and Land Court at Murang'a pending the intended appeal is dismissed
- 2.Costs of the application awarded to the respondent
- On appeal from
- Environment and Land Court at Murang'a
- ELC Case No. 5 of 2019
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules (application for stay pending intended appeal)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "George Mwicigi Githengi & another v John Baptista Murira Kweri [2020] KECA 130 (KLR)", Case Analysis (2020). Civil Application No. 82 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/130/eng@2020-12-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.