Sakayo Mwimbi v Kothome Katumi [2020] KECA 156 (KLR)
The bottom line
#The Court of Appeal protected a family from eviction from the land they occupy while their appeal over ownership is decided.
What this practically means
#Executive summary
#Key legal issues
#Whether the intended appeal is arguable under rule 5(2)(b)
The appeal is arguable because the applicant complained that the learned judge failed to take into account matters that ought to have been taken into account, including the magistrate's reliance on unverified documents and the family's long residence.
The memorandum of appeal raised the complaint that the trial magistrate determined the dispute on unverified documents and without regard to evidence that the applicant's family had resided on the parcel for over 50 years. The court reasoned that if the learned judge failed to take into account matters he ought to have considered, the appeal would be arguable, citing Kenya Breweries Ltd v Godfrey Odoyo.
Whether the appeal would be rendered nugatory if stay were refused
Yes. If the family were evicted and the appeal later succeeded, the appeal would be rendered nugatory as the substratum of the appeal would be lost.
Although the respondent had already fenced off the cultivated portion and the family no longer had access to it, the family remained in occupation of the residential portion. Given the respondent's threats to evict them from that portion, the court was satisfied that eviction would destroy the substratum of the appeal if it later succeeded.
Legal principles established
#- An applicant under rule 5(2)(b) must show that the appeal is arguable and that, if stay is refused and the appeal later succeeds, the success would be rendered nugatory.
Court orders
#- 1.Status quo to be maintained: the applicant and his family shall not be evicted from the portion of the disputed parcel upon which they reside and are in occupation, pending the hearing and determination of the appeal
- 2.Costs in the appeal
- On appeal from
- Environment and Land Court at Machakos
- Machakos ELC Appeal Number 17 of 2017
- 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.
Cite this brief
#Cite this brief
Caselaw, "Sakayo Mwimbi v Kothome Katumi [2020] KECA 156 (KLR)", Case Analysis (2020). Civil Application No. 229 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/156/eng@2020-11-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.