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Court of AppealDismissedCivil Application No. 327 of 2019· [2020] KECA 890 (KLR)

Wakiha Muchungu v Zacharia Muchungu & 2 others [2020] KECA 890 (KLR)

Court of Appeal of Kenya
7 February 2020
RNR.N. NambuyeKMK. M'InotiSKS. ole Kantai
2,069 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to halt an eviction and land judgment, ruling that a party who defies court orders deserves no protection.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Nairobi (Nambuye, M'Inoti and Kantai, JJ.A.) on a Notice of Motion under rule 5(2)(b) of the Court of Appeal Rules seeking a stay of execution of the judgment of the Environment and Land Court (Komingoi, J.) delivered on 27th June 2019 in HCCC/ELC No. 5860 of 1993, pending an intended appeal. The trial court had given the 1st respondents a permanent injunction, ordered the applicant's immediate eviction from L.R. No. Limuru/Rironi/171, ordered rectification of the register, declared the applicant a trespasser and awarded Kshs.500,000 general damages for trespass. The applicant claimed he had occupied the suit land since between 1958 and 1978 under a trust in his favour and that eviction would render the intended appeal nugatory. The 1st respondents maintained the applicant entered the land illegally in 1993, had other inheritance land available, and had violated prior court orders, including a 1996 restraint order by Ringera, J. Applying the settled twin principles from Stanley Kangethe Kinyanjui v Tony Ketter & Others [2013] eKLR, the court found no arguable point of appeal and held that an applicant who violates court orders with abandon deserves no equitable protection under rule 5(2)(b). The Motion was dismissed with costs to the 1st respondents on 7th February 2020.

Key legal issues

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Whether the intended appeal is arguable

Holding

The application was dismissed because no arguable point was discernible; the applicant had also violated subsisting court orders and so was undeserving of equitable protection.

Reasoning

The court reviewed the record, including a 1993 order by Pall, J. declaring the applicant had no right to the suit land, and a 1996 order by Ringera, J. restraining developments, which the applicant allegedly breached. Given that uncontroverted evidence and the absence of any appeal against the 1993 order, the court found no bona fide arguable ground and held the applicant disentitled to equitable protection under rule 5(2)(b).

p. 3

Legal principles established

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  • An applicant under rule 5(2)(b) must satisfy both twin principles: that the appeal is arguable and that it will be rendered nugatory absent stay.
  • A party who violates court orders is not entitled to equitable relief under rule 5(2)(b).

Court orders

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  1. 1.The Notice of Motion dated for stay of execution of the judgment of the Environment and Land Court pending intended appeal is dismissed
  2. 2.Costs of the application awarded to the 1st respondents

Authorities

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Legislation

  • Court of Appeal RulesRule 5(2)(b)
  • Court of Appeal RulesRule 75

Cases cited (1)

  • Stanley Kangethe Kinyanjui v Tony Ketter & Others
    [2013] eKLR
On appeal from
Environment and Land Court of Kenya at Nairobi
HCCC/ELC No. 5860 of 1993
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules (original and discretionary jurisdiction to grant stay of execution/injunction pending appeal)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Wakiha Muchungu v Zacharia Muchungu & 2 others [2020] KECA 890 (KLR)", Case Analysis (2020). Civil Application No. 327 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/890/eng@2020-02-07

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