Christopher Nyamohanga v Peter Masakwi Mogori (Suing as the Personal representative of the Estate of Paulo Wangkio alias Paul Wankio Getari- Deceased) & 2 others [2020] KECA 199 (KLR)

Court of Appeal

20 November 2020

ASAsike-Makhandia SKS. Gatembu Kairu SKS. ole Kantai

817 words in judgment

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The bottom line

Kenya's Court of Appeal stopped the transfer of disputed land so an elderly buyer doesn't lose his property while his appeal is still pending.

What this practically means

Executive summary

This was an interlocutory application under Rule 5(2)(b) of the Court of Appeal Rules, supported by Sections 3A and 3B of the Appellate Jurisdiction Act, in which Christopher Nyamohanga sought a stay of execution of the judgment of the Environment and Land Court at Migori (Ongondo, J.) delivered on 15th July, 2020 in ELRC No. 418 of 2017, in which the first respondent's suit succeeded while the applicant's counter-claim was dismissed and the applicant's title to land parcel Bugumbe/Mabera/298 was annulled. The land had been charged to Kenya Commercial Bank Limited, sold at public auction in exercise of a statutory power of sale, and bought by the applicant. The applicant argued that the judge erred in granting orders contrary to Section 77(3) of the repealed Registered Land Act and Section 99 of the Land Act, 2012, acted in excess of jurisdiction, failed to require proof of fraud to the requisite standard, wrongly declined to find the suit time-barred, and wrongly rejected his defence of innocent purchaser. The court restated the two cumulative requirements for a Rule 5(2)(b) application: an arguable appeal and the nugatory principle. It found the grounds on the statutory provisions, excess of jurisdiction and impeachability of a title obtained at a statutory power of sale arguable. On the second limb, it accepted that a transfer of the land to a third party would place it beyond the applicant's reach and render the appeal nugatory. Both limbs being satisfied, the court allowed the motion and stayed execution pending the intended appeal, with costs to abide Kisumu Civil Appeal No. 105 of 2020.

Key legal issues

Arguability of the intended appeal

Holding

The court found the intended appeal arguable on grounds concerning the repealed Registered Land Act, the Land Act, 2012, excess of jurisdiction and impeachability of a title acquired at a statutory power of sale.

Reasoning

The court reviewed the grounds of appeal and identified those challenging the grant of orders contrary to Section 77(3) of the repealed Registered Land Act and Section 99 of the Land Act, 2012, the alleged excess of jurisdiction, and whether a title obtained after a statutory power of sale is impeachable. It concluded these raised bona fide issues fit for argument on appeal.

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Nugatory aspect of the stay application

Holding

If the land were transferred to a third party it would be beyond the applicant's reach and the appeal would be rendered nugatory, satisfying the second limb.

Reasoning

The applicant, of advanced age and frail health, deponed that the land risked being transferred to a third party and subsequently out of the jurisdiction of the court. The court noted that such a transfer would place the property beyond the applicant's reach, meaning the substantial subject matter of the appeal would be lost before the appeal could be heard.

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Legal principles established

An applicant under Rule 5(2)(b) must satisfy two cumulative limbs: the appeal or intended appeal must be arguable, and it must be rendered nugatory absent stay.

Court orders

1.Stay of execution of the judgment of the Environment and Land Court at Migori delivered on 15th July, 2020 pending the hearing and determination of the intended appeal
2.Costs to abide Kisumu Civil Appeal No. 105 of 2020

Authorities

Legislation

Court of Appeal RulesRule 1(2)
Court of Appeal RulesRule 5(2)(b)
Appellate Jurisdiction ActSection 3A
Appellate Jurisdiction ActSection 3B
Registered Land Act (repealed)Section 77(3)
Land Act, 2012Section 99

On appeal from: Environment and Land Court; ELRC No. 418 of 2017
Jurisdiction invoked: Rule 5(2)(b) of the Court of Appeal Rules, read with Sections 3A and 3B of the Appellate Jurisdiction Act

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Christopher Nyamohanga v Peter Masakwi Mogori (Suing as the Personal representative of the Estate of Paulo Wangkio alias Paul Wankio Getari- Deceased) & 2 others [2020] KECA 199 (KLR)", Case Analysis (2020). Civil Application No. 105 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/199/eng@2020-11-20

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