George Mwaura Kabui v Catherine Muthoni Ireri [2020] KECA 819 (KLR)
The bottom line
#Kenya's Court of Appeal stopped an eviction, ruling the buyer living on the land can stay until his appeal over the disputed sale is decided.
What this practically means
#Executive summary
#Key legal issues
#Whether the intended appeal is arguable
The point whether lack of Land Control Board consent vitiates the sale is arguable, given conflicting positions of the Court on the effect of absence of consent
The applicant contended that consent of the Land Control Board was sought and obtained; the respondent asserted none was obtained, rendering the sale a nullity. The court noted conflicting decisions of the Court of Appeal on the effect of lack of consent and held the point bona fide arguable without making final findings, as required at the interlocutory stage.
Whether the appeal would be rendered nugatory absent stay
Since the applicant is in possession and resides on the suit property with his matrimonial home there, eviction would render the appeal nugatory; the ends of justice require he remain pending appeal
The court accepted that the applicant is undisputedly in possession, having built a matrimonial home and lived on the property since the 1990s. Eviction would be disruptive and potentially irreversible pending appeal, so the nugatory limb was satisfied and stay was warranted in the interests of justice.
Legal principles established
#- An applicant under Rule 5(2)(b) must satisfy both twin principles: an arguable appeal and that the appeal will be rendered nugatory absent stay
- A single bona fide arguable ground suffices to establish arguability
- A Rule 5(2)(b) court must not make definitive or final findings of fact or law at the interlocutory stage
Court orders
#- 1.Stay of execution of the orders of the Environment & Land Court made on 30th August 2018 ordering eviction of the applicant from Chania/Kanyoni/2088, pending the hearing and determination of the intended appeal (motion dated 11th February 2019 allowed)
- 2.Costs of the motion to abide the outcome of the intended appeal
- On appeal from
- Environment & Land Court of Kenya at Nairobi
- ELC No. 1032 of 2003
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "George Mwaura Kabui v Catherine Muthoni Ireri [2020] KECA 819 (KLR)", Case Analysis (2020). Civil Application No. 48 of 2019 (UR. 54 of 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/819/eng@2020-04-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.