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Court of AppealAllowedCivil Application No. 186 of 2020· [2020] KECA 332 (KLR)

Yusuf Mwero Mwazengele & 2 others v Benson Baya Yaa (Suing as the Administrator of Omar Bakari Yaa (Deceased) [2020] KECA 332 (KLR)

Court of Appeal
2 October 2020
Mohamed Abdulahi WarsameM. WarsameDMD. K. MusingaFSF. Sichale
504 words in judgment
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The bottom line

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The Court of Appeal stopped the transfer of a Mida Creek plot, preserving the land until an appeal over its ownership is fully heard.

What this practically means

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Executive summary

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This was an interlocutory ruling of the Court of Appeal at Malindi on a Notice of Motion dated 29th June 2020 by the 1st applicant, Yusuf Mwero Mwazengele, brought under rules 5(2)(b) and 41 of the Court of Appeal Rules. He sought stay of execution of the judgment of Olola, J. of the Environment and Land Court at Malindi delivered on 27th May 2020 in E.L.C Suit No. 93 of 2017, which ordered the suit land, Plot No. 80 Mida at Mida Creek, to be transferred to the respondent, pending an intended appeal. The application was unopposed: despite service, the respondent's advocates neither filed a response nor appeared. The applicants asserted that the 1st applicant is the registered owner of the plot, that the hearing proceeded ex-parte owing to his advocate's mistake, and that the trial court failed to determine his application dated 26th June 2019 seeking to set aside the ex-parte proceedings and to be heard. Applying the rule 5(2)(b) principles summarised in Stanley Kangethe v Tony Ketter & Others [2013] eKLR, the court found the intended appeal arguable and that execution would render it nugatory. The court allowed the motion and restrained both parties from disposing of, leasing, or charging the suit land pending the intended appeal, with costs to abide the outcome of that appeal. This is a single judgment of the whole bench; it is not a decision on the merits of the appeal itself.

Key legal issues

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Whether the threshold for stay under rule 5(2)(b) was met

Holding

The court found both limbs satisfied: the appeal was arguable and would be rendered nugatory without stay.

Reasoning

Applying the principles in Stanley Kangethe v Tony Ketter & Others, the court noted that the 1st applicant claimed to be the registered owner of Plot No. 80 Mida, that the hearing proceeded in his absence due to his advocate's mistake, and that the trial court failed to determine his application to set aside the ex-parte proceedings. On those facts the appeal was arguable, and execution transferring the suit land would render the intended appeal nugatory.

p. 1

Legal principles established

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  • An applicant under rule 5(2)(b) must demonstrate that the intended appeal is arguable and that, absent the orders sought, the appeal would be rendered nugatory.

Court orders

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  1. 1.The Notice of Motion dated 29th June 2020 is allowed
  2. 2.The suit land, being Plot No. 80 Mida, situated at Mida Creek, shall not be disposed of, leased, or charged by either the 1st applicant or the respondent pending hearing and determination of the intended appeal

Authorities

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Legislation

  • Court of Appeal Rulesrule 5(2)(b)
  • Court of Appeal Rulesrule 41

Cases cited (1)

  • Stanley Kangethe v Tony Ketter & Others
    [2013] eKLR
On appeal from
Environment and Land Court of Kenya at Malindi
E.L.C Suit No. 93 of 2017
Jurisdiction invoked
Rules 5(2)(b) and 41 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, "Yusuf Mwero Mwazengele & 2 others v Benson Baya Yaa (Suing as the Administrator of Omar Bakari Yaa (Deceased) [2020] KECA 332 (KLR)", Case Analysis (2020). Civil Application No. 186 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/332/eng@2020-10-02

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