Catherine Njeri v Rose Wangari Ndung’u (Suing on their own behalf and for their own benefit and on behalf of and for the benefit of the Estate of the late Stanley Ndung’u Njoroge) & another [2020] KECA 244 (KLR)
The bottom line
#The Court of Appeal halted a woman's eviction from her home of 30 years, confirming that occupied property claims justify staying orders pending appeal.
What this practically means
#Executive summary
#Key legal issues
#Arguability of the intended appeal
The intended appeal is arguable because issues on the principles for grant of mandatory injunction, lawful ownership of the suit property and fraud are not idle.
The court examined the grounds in the draft memorandum of appeal and concluded that they raise substantive questions, not idle ones. An appeal need not succeed to be arguable; it need only raise issues worthy of consideration by the Court.
Nugatory value of the appeal
Because the applicant remains in occupation of the suit property, her apprehension of eviction before determination of the appeal is justified, so the appeal would be rendered nugatory absent a stay.
The applicant is in occupation of the suit property, which she claims as her matrimonial home of over 30 years. The mandatory injunction compelling her to vacate within 45 days, with police-supervised eviction on default, created a real risk of eviction and demolition before the appeal could be heard, satisfying the second limb of the rule 5(2)(b) test.
Legal principles established
#- The jurisdiction of the Court under rule 5(2)(b) is discretionary and guided by two principles: that the appeal or intended appeal is arguable, and that unless the orders sought are granted the appeal will be rendered nugatory.
Court orders
#- 1.Stay of the orders of 16th July, 2020 and of further proceedings in the court below pending the hearing and determination of the appeal
- 2.Applicant to lodge and serve the record of appeal within 30 days of the ruling, failing which the stay orders shall stand vacated without further orders
- 3.Costs to be in the appeal
- On appeal from
- Environment and Land Court (High Court), Thika
- Thika ELC No. 180 of 2017 (Formally NRB ELC No. 1282 of 2014)
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Catherine Njeri v Rose Wangari Ndung’u (Suing on their own behalf and for their own benefit and on behalf of and for the benefit of the Estate of the late Stanley Ndung’u Njoroge) & another [2020] KECA 244 (KLR)", Case Analysis (2020). Civil Application No. E237 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/244/eng@2020-10-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.