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Court of AppealAllowedCivil Application No. 10 of 2020 (UR 8/2020)· [2020] KECA 185 (KLR)

National Land Commission v Theresia Runji & 4 others [2020] KECA 185 (KLR)

Court of Appeal
20 November 2020
ASAsike-MakhandiaSISichaleJMJ. Mohammed
1,381 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal paused a Kshs. 1 billion+ compensation order against the National Land Commission until its appeal is heard, protecting public funds from an possibly unrecoverable payment.

What this practically means

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Executive summary

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The National Land Commission applied under Rule 5(2)(b) of the Court of Appeal Rules for stay of execution of a High Court judgment (Ogola, J, 12th November 2019) in Mombasa Constitutional Petition No. 17 of 2018. The High Court had decreed that the Commission tabulate, assess and compensate the 1st to 4th respondents for land compulsorily acquired for the Standard Gauge Railway, with interest at commercial rates. The Commission had already compensated the 5th respondent, the registered owner, Kshs. 1,475,486,845. It argued the appeal was arguable on jurisdictional grounds - that disputes over land title, compulsory acquisition and compensation fall within the Environment and Land Court's jurisdiction - and that execution would compel double payment of over Kshs. 1 billion of public funds. The 5th respondent supported the application; the 1st to 4th respondents filed nothing in opposition. Applying the settled two-limb test from Stanley Kang'ethe Kinyanjui vs Tony Keter - arguability and nugatory value - and the principle that one arguable point suffices (Joseph Gitahi Gachau), the Court found the intended appeal arguable and held that a judgment exceeding Kshs. 1 billion against private respondents of no known means would be rendered nugatory if executed and later reversed. The court granted stay in terms of prayer two, conditioned on the appeal being filed within 45 days failing which stay would stand vacated, with costs abiding the appeal's outcome. This ruling binds no issue on the merits; it preserves the status quo pending appeal.

Key legal issues

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01

Arguability of the intended appeal

Holding

The intended appeal was arguable on the questions of jurisdiction of the High Court over land title and compensation, non-existence of the suit property and lack of title in the 1st to 4th respondents.

Reasoning

The court held it was precluded from making definitive conclusions at the stay stage. It found the jurisdictional challenge - that land title, compulsory acquisition and compensation disputes belong to the Environment and Land Court - together with the contention that the suit property did not exist and the respondents never held title, were issues deserving ventilation on appeal.

p. 2
02

Nugatory value of the intended appeal

Holding

The appeal would be rendered nugatory if stay were refused, given the colossal sum of over Kshs. 1 billion and the respondents' apparent inability to repay.

Reasoning

The compensation claimed exceeded Kshs. 1 billion, an amount that would be difficult to recover from private respondents with no known sources of income or assets who had not demonstrated ability to repay if the appeal succeeded. Double compensation and use of public funds were also weighed in favour of granting stay.

p. 2

Legal principles established

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  • An application under Rule 5(2)(b) requires the applicant to show first that the appeal is arguable, and second that it will be rendered nugatory unless stay is granted.
  • A single arguable point suffices; an arguable appeal is one deserving consideration, not one guaranteed to succeed.
  • The nugatory test asks whether what is sought to be stayed is reversible, or, if not reversible, whether damages would reasonably compensate the aggrieved party.

Court orders

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  1. 1.Stay of execution of the judgment and decree of the High Court (Ogola, J) dated 12th November 2019 granted in terms of prayer two (2) of the notice of motion dated 30th January 2020
  2. 2.Intended appeal to be filed within 45 days from the date of the ruling, failing which the order of stay shall stand vacated
  3. 3.Costs to abide the outcome of the intended appeal

Authorities

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Legislation

  • Land Act
  • Court of Appeal RulesRule 5(2)(b)

Cases cited (2)

  • Stanley Kang'ethe Kinyanjui vs Tony Keter & 5 Others
    [2013] eKLR
  • Joseph Gitahi Gachau & Anor vs Pioneer Holdings (A) Limited & 2 Others
    Civil Application No. 124 of 2008 (ur)
On appeal from
High Court of Kenya at Mombasa
Constitutional Petition No. 17 of 2018
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "National Land Commission v Theresia Runji & 4 others [2020] KECA 185 (KLR)", Case Analysis (2020). Civil Application No. 10 of 2020 (UR 8/2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/185/eng@2020-11-20

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