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Court of AppealDismissedCivil Application No. 69 of 2019· [2020] KECA 298 (KLR)

Samuel Nyakeri Nyabiba v Peter Okiabera Omwenga [2020] KECA 298 (KLR)

Court of Appeal
9 October 2020
HOHannah OkwenguJMJ. MohammedSKS. ole Kantai
583 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Court of Appeal dismissed a landowner's attempt to block a property transfer, confirming that its rule 5(2)(b) powers only apply when an appeal is actually pending.

What this practically means

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Executive summary

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The applicant, Samuel Nyakeri Nyabiba, moved the Court of Appeal by notice of motion dated 29th May 2019 under rule 5(2)(b) of the Court of Appeal Rules, seeking an injunction restraining the respondent, Peter Okiabera Omwenga, from evicting tenants or collecting rent from land parcel Nzoia Sisal/Moi's Bridge/Block 1/3406, and an order for survey by an independent surveyor to confirm the respondent's share of 25 by 100 ft. The application arose from the Court of Appeal's own judgment of 1st March 2018 in Eldoret Civil Appeal No. 45 of 2015, which allowed the respondent's appeal against the Environment and Land Court (Ombwayo, J) and ordered the applicant to transfer the suit property, while suspending that order for nine months within which the applicant could transfer an alternative commercial property of the same size. The applicant wished to surrender only part of the property, alleging the respondent threatened to take more than decreed; the respondent maintained the order was for transfer of the whole property, not subdivision. The Court held that rule 5(2)(b) governs stay or injunction pending appeal and can only be invoked where a notice of appeal has been filed; since the Court had already delivered final judgment, no such appeal existed and the application was defective and misconceived. It further found the nine-month option period had expired and that the judgment ordered transfer of the whole suit property, so the question of the plot's size did not arise. The motion was dismissed. No costs order was recorded and no authorities were cited.

Key legal issues

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01

Jurisdiction under rule 5(2)(b) where judgment is final

Holding

The application was defective and misconceived because rule 5(2)(b) applies only to stay/injunction pending appeal and no appeal was pending

Reasoning

Rule 5(2)(b) deals with stay of execution/proceedings or injunction pending appeal. Its invocation presupposes a filed notice of appeal against the judgment of the lower court. Since this Court had itself delivered final judgment on 1st March 2018, no appeal was pending and there was nothing to stay; the application was therefore defective.

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02

Scope of the decree in the judgment of 1st March 2018

Holding

The judgment ordered transfer of the entire suit property to the respondent, not subdivision and transfer of a portion; the 9-month option to transfer an alternative plot had expired

Reasoning

The applicant contended he need only surrender part of the property as the respondent sought more than decreed. The Court found on the face of its own judgment that it ordered transfer of the suit property itself, and that the 9-month period for exercising the option to transfer an alternative plot had long expired, so neither the survey nor the partial-surrender claim could arise.

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Legal principles established

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  • An application under rule 5(2)(b) of the Court of Appeal Rules for stay or injunction pending appeal can only be brought where a notice of appeal has been filed; it is unavailable where the Court has already delivered final judgment

Court orders

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  1. 1.The notice of motion dated 29th May 2019 is dismissed

Authorities

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Legislation

  • Court of Appeal Rulesrule 5(2)(b)
On appeal from
Court of Appeal
Eldoret Civil Appeal No. 45 of 2015
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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Cite this brief

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Cite this brief

Caselaw, "Samuel Nyakeri Nyabiba v Peter Okiabera Omwenga [2020] KECA 298 (KLR)", Case Analysis (2020). Civil Application No. 69 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/298/eng@2020-10-09

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