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Court of AppealDismissedNyeri Civil Application No. 81 of 2020· [2020] KECA 145 (KLR)

Willy Kipkoech Kirui v Peter Kiplangat Rono [2020] KECA 145 (KLR)

Court of Appeal of Kenya
4 December 2020
ASAsike-MakhandiaGKGatembu KairuSISichale
517 words in judgment
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The bottom line

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The Court of Appeal refused to protect Kericho land from being dealt with because the applicant showed neither an arguable appeal nor real harm from waiting.

What this practically means

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Executive summary

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This was an interlocutory application under Rule 5(2)(b) of the Court of Appeal Rules read with Sections 3A and 3B of the Appellate Jurisdiction Act, in which Willy Kipkoech Kirui sought an injunction restraining Peter Kiplangat Rono from interfering with or dealing with Title Number Kericho/Kipchimchim/2192 pending an intended appeal against the judgment of Onyango, J of the Environment and Land Court at Kericho of 30th July 2020, which had dismissed the applicant's appeal. The underlying dispute arose from a contract of sale of one acre of the suit premises by the applicant's deceased father to the respondent; the magistrate's court entered a default judgment in the respondent's favour. The Court of Appeal, coram Asike-Makhandia, Gatembu Kairu and Sichale, JJ.A, applied the principles in Stanley Kang'ethe Kinyanjui v Tony Keter & 5 Others. It held that the applicant had failed to demonstrate an arguable appeal that would be rendered nugatory absent the orders sought, noting that the father had sold the acre to the respondent, that judgment had been entered in the respondent's favour, and that the suit premises had been auctioned and sold to a third party who was not a party to the appeal or the ELC suit. The court disallowed the Notice of Motion dated 19th August 2020 and ordered the applicant to bear the costs of the application. The decision below was not disturbed, as this was not an appeal on the merits.

Key legal issues

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01

Whether the twin principles for a stay/injunction under Rule 5(2)(b) were satisfied

Holding

The application was disallowed because the applicant did not satisfy the twin principles of an arguable appeal and nugatory aspect

Reasoning

The court applied the guiding principles in Stanley Kang'ethe Kinyanjui v Tony Keter & 5 Others. It found no arguable appeal had been demonstrated because the applicant's father had sold one acre of the suit premises to the respondent, judgment had been entered in the respondent's favour in the magistrate's court, and the suit premises had been auctioned and sold to a third party who was not party to the proceedings. Accordingly, neither limb of the Rule 5(2)(b) test was met and no injunction pending appeal could issue.

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02

Whether the orders sought to be stayed were negative orders incapable of being stayed

Holding

The court did not make a finding on this point, proceeding instead on the failure to satisfy the Rule 5(2)(b) principles

Reasoning

The respondent argued the orders sought to be stayed were negative orders since the applicant's appeal was dismissed. The court's ruling did not determine this issue, instead dismissing the application on the ground that the twin principles for grant of a Rule 5(2)(b) order - arguability and nugatory aspect - were not demonstrated, taking into account that the suit premises had passed to a third party not before the court.

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Legal principles established

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  • A Rule 5(2)(b) applicant must demonstrate both an arguable appeal and that the appeal would be rendered nugatory if the orders sought are not granted

Court orders

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  1. 1.The Notice of Motion dated 19th August, 2020 is disallowed
  2. 2.The applicant shall bear the costs of the application

Authorities

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Legislation

  • Appellate Jurisdiction ActSections 3A and 3B
  • Court of Appeal RulesRule 5(2)(b)

Cases cited (1)

  • Stanley Kang’ethe Kinyanjui vs. Tony Keter & 5 Others
    [2013] eKLR
On appeal from
Environment and Land Court at Kericho
ELC Appeal No. 3 of 2018
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules and Sections 3A and 3B of the Appellate Jurisdiction Act

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, "Willy Kipkoech Kirui v Peter Kiplangat Rono [2020] KECA 145 (KLR)", Case Analysis (2020). Nyeri Civil Application No. 81 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/145/eng@2020-12-04

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