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Court of AppealDismissedCivil Application No. 115 of 2020· [2020] KECA 235 (KLR)

Dakawou Transporters Limited v National Land Commission & 2 others; Raphael Musyoki Ndeti (Suing as an Administrator of the Estate of Peter Nzuki Ndeti) (Interested Party) [2020] KECA 235 (KLR)

Court of Appeal
23 October 2020
DMD.K. MusingaPKP.O. KiageFSF. Sichale
591 words in judgment
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The bottom line

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The Court of Appeal refused to halt a land title transfer and Kshs. 89 million compensation because an arguable appeal alone is not enough for a stay in Kenya.

What this practically means

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Executive summary

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This was an interlocutory application by Dakawou Transporters Limited under rule 5(2)(b) of the Court of Appeal Rules and sections 3A and 3B of the Appellate Jurisdiction Act, seeking stay of execution of the judgment of the Environment and Land Court at Machakos (A. O. Angote, J.) dated 21st February 2020 in Judicial Review No. 56 of 2018, together with conservatory orders restraining the Chief Registrar of Lands from transferring the suit property, L.R No. 337/1208, and restraining the National Land Commission from paying compensation of Kshs. 89,396,888 for the compulsory acquisition of the property, pending an intended appeal. The interested party, Raphael Musyoki Ndeti, suing as administrator of the estate of Peter Nzuki Ndeti, opposed the application, contending that the order sought to be stayed was a negative order incapable of being stayed, that the family had already been registered as owner with a Certificate of Title issued on 11th May 2020 in the name of Peter Nzuki Ndeti Trust Registered Trustees, and that the application had been overtaken by events. Applying the settled principles in Stanley Kangethe Kinyanjui v Tony Ketter & Others, the Court (Musinga, Kiage and Sichale JJ.A.), in a single unanimous ruling, held that although the applicant had an arguable appeal, it had failed to demonstrate that the appeal would be rendered nugatory if stay was refused. The Court further noted that the order sought to be stayed was a negative one, not amenable to stay, and that the application had been overtaken by events. The Notice of Motion dated 11th May 2020 was dismissed with costs to the applicant. This ruling binds subordinate courts on the twin principles governing rule 5(2)(b) applications.

Key legal issues

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Whether stay of execution and conservatory orders should issue under rule 5(2)(b)

Holding

The application fails on the nugatory limb and additionally because the order sought to be stayed is a negative order and the application has been overtaken by events.

Reasoning

The Court applies the principles in Stanley Kangethe Kinyanjui v Tony Ketter & Others: the applicant must show an arguable appeal and that it would be rendered nugatory absent stay. Although arguability was conceded, the nugatory limb failed. Further, the impugned judgment directed revocation of the applicant's title and issuance of a new title, a negative order incapable of being stayed, and the interested party had already been registered and issued a Certificate of Title, rendering the application moot.

p. 1

Legal principles established

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  • For stay under rule 5(2)(b), an applicant must demonstrate both an arguable appeal and that the appeal will be rendered nugatory if stay is not granted; arguability alone is insufficient.
  • A negative order is not amenable to an order of stay of execution.

Court orders

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  1. 1.The Notice of Motion dated 11th May 2020 is dismissed.
  2. 2.The applicant shall bear the costs of this application.

Authorities

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Legislation

  • Court of Appeal Rulesrule 5(2)(b)
  • Appellate Jurisdiction Actsection 3A
  • Appellate Jurisdiction Actsection 3B

Cases cited (1)

  • Stanley Kangethe Kinyanjui v Tony Ketter & Others
    [2013] eKLR
On appeal from
Environment and Land Court of Kenya at Machakos
E.L.C Misc. Appl. (JR) No. 56 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, "Dakawou Transporters Limited v National Land Commission & 2 others; Raphael Musyoki Ndeti (Suing as an Administrator of the Estate of Peter Nzuki Ndeti) (Interested Party) [2020] KECA 235 (KLR)", Case Analysis (2020). Civil Application No. 115 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/235/eng@2020-10-23

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