David Kamau Kariuki (Suing as the Legal Representative of the Late Esther W. Kirii) v Stanley Theuri (Suing as the Legal Representative of the Estate of Francis K. Mwai) & 2 others [2020] KECA 374 (KLR)
The bottom line
#The Court of Appeal refused to halt eviction orders because the eviction had already happened — wait too long and there may be nothing left for a court to stay.
What this practically means
#Executive summary
#Key legal issues
#Arguability of the intended appeal
The intended appeal was arguable given the applicant's contention that he had acquired the disputed portion through adverse possession after long occupation.
The applicant asserted in the draft memorandum of appeal that the judge erred in finding the review threshold unmet, and that his family's long occupation of the disputed portion had ripened into adverse possession. Given the nature of the case, the court was satisfied that the intended appeal was arguable, satisfying the first limb of the rule 5(2)(b) test.
Whether the appeal would be rendered nugatory without a stay
The second limb was not met because the eviction had already been effected and the 1st respondent had taken over the disputed portion; there was nothing for the court to stay.
The court examined the applicant's own replying affidavit, which admitted that the 1st respondent had entered the land, erected an intrusive fence through the homesteads, and blocked the family's paths. Execution was therefore already complete. Since a stay cannot restore what has already occurred, the applicant failed to demonstrate that the appeal would be rendered nugatory, and the motion had to fail in its entirety.
Legal principles established
#- An applicant in a rule 5(2)(b) application must show that the appeal or intended appeal is arguable, and that it would be rendered nugatory unless the orders sought are granted; where execution has already taken place and there is nothing left to stay, the second limb fails.
Court orders
#- 1.The Notice of Motion dated 7th February 2020 is dismissed
- 2.The costs of the application shall abide by the outcome of the appeal
- On appeal from
- Environment and Land Court
- ELC No. 440 of 2017
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules (application for stay of execution and stay of proceedings pending intended appeal)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "David Kamau Kariuki (Suing as the Legal Representative of the Late Esther W. Kirii) v Stanley Theuri (Suing as the Legal Representative of the Estate of Francis K. Mwai) & 2 others [2020] KECA 374 (KLR)", Case Analysis (2020). Civil Application No. 38 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/374/eng@2020-08-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.