Ngai & 6 others v Sparkle Properties Limited & 2 others (Civil Application 69 of 2020) [2021] KECA 65 (KLR)
The bottom line
#Kenya's Court of Appeal stopped an eviction pending appeal, holding that demolishing the appellants' structures would make a successful appeal worthless.
What this practically means
#Executive summary
#Key legal issues
#The test for relief under rule 5(2)(b) of the Court of Appeal Rules
An applicant must satisfy the twin limbs of arguability and nugatory aspect; both were satisfied here.
The court restated the settled principles from Stanley Kangethe Kinyanjui v Tony Ketter, finding the memorandum of appeal disclosed arguable grounds relating to transfer of the suit land contrary to special conditions of the lease and the effect of lack of a company resolution. On the nugatory limb, eviction and demolition of the structures would render a successful appeal useless, so both limbs were met.
Whether an out-of-time notice of appeal can be faulted absent a rule 84 application to strike out
In the absence of a formal application to strike out the notice of appeal under rules 83 and 84, the 1st respondent's invitation to fault the notice of appeal was incompetent.
Although the notice of appeal was filed out of time (judgment delivered 24th January 2020, notice filed 28th April 2020), rule 84 requires a person affected by an appeal to apply to strike out the notice or appeal within 30 days of service. The 1st respondent filed no such application, and following Agricultural Development Corporation v Richard Kipkoech Aiyabei the court held that faulting a defective notice through submissions alone is not permitted.
Whether the eviction of the applicants would render the intended appeal nugatory
Yes - if the eviction is carried out and structures on the suit land destroyed, a successful appeal would be rendered nugatory.
The 1st respondent had already applied to the trial court for police security to execute the decree by demolishing the structures on the suit land. The court agreed that once demolition occurred, the applicants would suffer irreparable loss and no successful appeal could restore the position, satisfying the nugatory limb.
Legal principles established
#- An application under rule 5(2)(b) requires the applicant to demonstrate that the appeal or intended appeal is arguable and that unless the orders sought are granted the appeal, if successful, shall be rendered nugatory.
- A notice of appeal cannot be struck out on the ground of any default unless a formal application is made under rule 84 of the Court of Appeal Rules; an oral request or invitation through submissions is incompetent.
Court orders
#- 1.An order of stay of execution of the judgment in Mombasa ELC No. 265 of 2013 pending hearing and determination of the appeal
- 2.Costs of the application to be in the appeal
- On appeal from
- Environment and Land Court, Mombasa
- Mombasa ELC No. 265 of 2013
- 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, "Ngai & 6 others v Sparkle Properties Limited & 2 others (Civil Application 69 of 2020) [2021] KECA 65 (KLR)", Case Analysis (2021). Mombasa Civil Appeal No. 42 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/65/eng@2021-10-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.