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Court of AppealAllowedNyeri Civil Application No. 156 of 2019· [2020] KECA 288 (KLR)

Isaac Murigi Muiruri (Suing as the administrator of the Estate of Muiruri Njiri (Deceased) v Francis Karume & 2 others [2020] KECA 288 (KLR)

Court of Appeal of Kenya
9 October 2020
1,654 words in judgment
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The bottom line

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The Court of Appeal halted eviction of a family living on disputed land, ruling their pending appeal would be ruined if execution proceeded first.

What this practically means

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Executive summary

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This is a single-judgment ruling of a three-judge bench of the Court of Appeal at Nairobi (Karanja, Koome and Makhandia, JJ.A) on a motion dated 25th September 2019 seeking stay of execution pending the hearing and determination of an intended appeal from the judgment of Kemei, J. of the Environment and Land Court at Murang'a in ELC Cause No. 438 of 2017, delivered on 25th July 2019. The trial court had dismissed the applicant's claim of an overriding interest over land parcel LOC1/THUITA/160 and ordered him to vacate within 90 days, failing which eviction would ensue. The applicant, administrator of his late father's estate, asserted the father purchased the land in the 1980s and that he had lived on and developed the land since 1963, with family graves there. The 1st and 2nd respondents filed no replying affidavits; the 3rd respondent, the registered purchaser, opposed. Notably, both counsel pegged their applications and submissions on inapplicable provisions - Order 42 of the Civil Procedure Rules and Articles 50 and 159(2) of the Constitution - instead of Rule 5(2)(b) of the Court of Appeal Rules. The Court declined to dismiss the application on that technical ground, considering it on its merits given the gravity of the matter. Applying the twin principles of arguability and nugatory aspect, and citing Stanley Kangethe Kinyanjui v Tony Ketter, the Court found the appeal not frivolous and held that refusal of stay would render the applicant's family destitute before the appeal was heard. The application was allowed, execution stayed until the appeal is determined, with costs of the application to abide the appeal's outcome.

Key legal issues

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01

Whether the twin principles for stay of execution under Rule 5(2)(b) were demonstrated

Holding

The Court found the appeal arguable and the nugatory aspect established, and stayed execution of the ELC judgment pending appeal.

Reasoning

The annexures showed the applicant lives on the suit property with old buildings and grave sites of family members, admitted by the 3rd respondent. If stay were refused, the houses would be demolished and the applicant's family rendered destitute before the appeal was heard. The memorandum of appeal showed the appeal was not frivolous. The Court balanced the parties' interests, noting the applicant's decades-long occupation and that the respondent purchased the land without confirming its status on the ground.

p. 3
02

Whether the application should be dismissed for being pegged on irrelevant provisions

Holding

Although the application and submissions were pegged on inapplicable provisions rather than Rule 5(2)(b), the Court considered the application on its merits given the gravity of the matter.

Reasoning

Both counsel relied on Order 42 of the Civil Procedure Rules and constitutional provisions rather than Rule 5(2)(b) of the Court of Appeal Rules. The Court criticised counsel for lack of research but declined to dismiss the application on that account, choosing instead to treat it as premised on the correct rules in view of the gravity of the matter. This reflects the Court's dispensation of substantive justice over technicality.

p. 2

Legal principles established

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  • For stay of execution under Rule 5(2)(b) to be granted, an applicant must demonstrate that the appeal is arguable and that if the orders sought are not granted the appeal will be rendered nugatory.
  • On arguability, it is sufficient if a single bona fide arguable ground of appeal is raised; an arguable appeal is not one which must necessarily succeed, but one which is not frivolous and ought to be argued fully.

Court orders

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  1. 1.Execution of the judgment of the Environment and Land Court delivered on 25th July 2019 is stayed until the appeal is heard and determined
  2. 2.Costs of the application to abide the outcome of the appeal

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 50
  • Constitution of Kenya, 2010Article 159(2)
  • Civil Procedure ActOrder 42 Rules 4 and 6
  • Court of Appeal RulesRule 5(2)(b)

Cases cited (4)

  • Salome Alice Akinyi v. Aridempta Veronica Ooko & Another
    (2019) eKLR
  • Stanley Kangethe Kinyanjui V Tony Ketter & 5 others
    [2013] eKLR
  • Damji Pragji Mandavia v Sara Lee Household & Body Care (K) Ltd
    Civil Application No. Nai 345 of 2004 (UR)
  • Joseph Gitahi Gachau & Another v. Pioneer Holdings (A) Ltd. & 2 others
    Civil Application No. 124 of 2008 (2009) eKLR
On appeal from
Environment and Land Court of Kenya at Murang'a
ELC Cause No. 438 of 2017
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules (application for stay of execution pending appeal); the application itself was mistakenly premised on Order 42 Rules 4 and 6 of the Civil Procedure Rules

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, "Isaac Murigi Muiruri (Suing as the administrator of the Estate of Muiruri Njiri (Deceased) v Francis Karume & 2 others [2020] KECA 288 (KLR)", Case Analysis (2020). Nyeri Civil Application No. 156 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/288/eng@2020-10-09

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