Francis Mwaura Njinu v Hannah Wanjiku Mburu & 4 others [2020] KECA 590 (KLR)
The bottom line
#The Court of Appeal refused to freeze a Ksh 2.2 million judgment or Karen land because the applicant proved only one of two required conditions.
What this practically means
#Executive summary
#Key legal issues
#Twin prerequisites for relief under Rule 5(2)(b)
An applicant must show the appeal is arguable and that it will be rendered nugatory if the relief is not granted; both limbs must be demonstrated
The court restated the established Rule 5(2)(b) test: arguability means a bona fide, non-frivolous issue, of which even one suffices; and the applicant bears the burden on the nugatory limb. Both conditions are cumulative. Having found the first limb satisfied but the second not, the court dismissed the application.
Whether the intended appeal would be rendered nugatory absent stay
No, because the suit property has already been transferred to the 5th respondent who is in possession, and transfers can be reversed on appeal
The applicant's feared dissipation of the land and of the 1st respondent's bank funds did not persuade the court. Since the property had already passed to the 5th respondent, any successful appeal could reverse the transfer. On the bank accounts, the applicant could execute the decree yet chose to appeal the same decision, so preservation was unjustified.
Arguability of the intended appeal
The draft memorandum of appeal raised arguable points concerning land control board consent, the terms of the sale agreement and loss of bargain damages
The court perused the draft memorandum and agreed that the complaints about the judge's treatment of land control board consent, disregard of the sale agreement's terms, and entitlement to loss of bargain damages were arguable, though not necessarily bound to succeed.
Legal principles established
#- An applicant under Rule 5(2)(b) must demonstrate both that the appeal or intended appeal is arguable and that it will be rendered nugatory if relief is not granted; both limbs must be established
- An arguable appeal need not succeed; it suffices that it raises a bona fide issue worthy of consideration, and demonstration of even one arguable point will suffice
Court orders
#- 1.The application is dismissed with costs to abide the outcome of the intended appeal
- On appeal from
- High Court of Kenya at Nairobi, Commercial & Tax Division
- Civil Case No. 379 of 2008
- 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, "Francis Mwaura Njinu v Hannah Wanjiku Mburu & 4 others [2020] KECA 590 (KLR)", Case Analysis (2020). Civil Application No. 83 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/590/eng@2020-06-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.