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Court of AppealAllowedNotice of Motion dated 17th May 2021, amended 14th July 2021 (in intended appeal from Eldoret ELC Case No. 599 of 2012)· [2021] KECA 98 (KLR)

Kiplagat & another v Rono & 65 others (Civil Application E078 of 2021) [2021] KECA 98 (KLR)

Court of Appeal of Kenya
22 October 2021
1,931 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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The Court of Appeal has paused evictions on disputed Kipkabus Scheme land, ruling that an arguable appeal and irreversible harm justified staying execution.

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 (Murgor, Omondi and Laibuta, JJ of Appeal) on a Notice of Motion under Rule 5(2)(b) of the Court of Appeal Rules seeking stay of execution of the decree and eviction orders in Eldoret ELC Case No. 599 of 2012 pending the Applicants' intended appeal. The intended appeal challenges a Ruling of the Environment and Land Court at Eldoret (Kibunja, J) delivered on 12th May 2021 dismissing three applications: one by the 34th to 66th defendants for change of advocates and stay of execution; one by the Applicants seeking joinder as co-defendants, leave to file a defence and setting aside of the 2nd March 2018 judgment; and one seeking contempt proceedings against the OCS Kaptagat Police Station and the Sub-County Commissioner, Keiyo South. The underlying suit concerned 34 parcels of land carved from Uasin Gishu Kipkabus Settlement Scheme/848, in which the plaintiffs obtained judgment and eviction orders. The Court applied the settled twin principles for stay pending appeal: arguability and nugatory aspect. It found the nine grounds of the intended appeal arguable, and held that eviction would be difficult to reverse and not compensable by damages. The Court allowed the motion, stayed all further execution proceedings pending the intended appeal, and ordered costs in the appeal.

Key legal issues

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01

Whether the intended appeal is arguable

Holding

The Court found the nine grounds of the intended appeal contentious and therefore arguable, without judging whether the appeal would succeed.

Reasoning

The Court read the amended Notice of Motion, the supporting and supplementary affidavits, the replying affidavit and the draft memorandum of appeal. It found the grounds advanced by the Applicants and contested by the 1st to 33rd Respondents to be arguable. It emphasised that whether the appeal will succeed is not for the Court to judge at this interlocutory stage; that is a matter for the hearing of the appeal.

p. 5
02

Whether the appeal would be rendered nugatory without stay

Holding

The Court held that execution of the eviction orders in the absence of stay could result in destruction of homesteads and livelihoods that would be difficult, if not impossible, to reverse, rendering the appeal nugatory.

Reasoning

Applying the nugatory limb, the Court reasoned that eviction and possible destruction of homesteads and livelihoods would be onerous, if not impossible, to undo, and that damages would not be a practical remedy for such irreversible eviction. Reliance was placed on Reliance Bank Ltd v Norlake Investments and University of Nairobi v Ricatti Business of East Africa on the meaning and application of the nugatory test.

p. 6

Legal principles established

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  • To succeed on a Rule 5(2)(b) application, an applicant must satisfy the twin tests: the appeal or intended appeal must be arguable (not frivolous), and if successful it would be rendered nugatory absent stay.
  • Whether an appeal will be rendered nugatory depends on whether what is sought to be stayed is reversible or, if not, whether damages will reasonably compensate the aggrieved party.
  • The meaning of 'nugatory' extends beyond worthlessness; it also includes the trifling, and what renders an appeal nugatory must be assessed on the circumstances of each case.

Court orders

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  1. 1.All further proceedings in execution of the decree in Eldoret ELC Case No. 599 of 2012 stayed pending hearing and determination of the intended appeal
  2. 2.Costs shall be in the appeal

Authorities

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Legislation

  • Court of Appeal RulesRule 5(2)(b)

Cases cited (3)

  • Anne Wanjiku Kibeh v Clement Kungu Waibara and IEBC
    [2020] eKLR
  • Reliance Bank Ltd v Norlake Investments Ltd
    (2002) 1 EA p.227
  • University of Nairobi v Ricatti Business of East Africa
    [2020] eKLR
On appeal from
Environment and Land Court of Kenya at Eldoret
ELC Case No. 599 of 2012
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules (stay of execution 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, "Kiplagat & another v Rono & 65 others (Civil Application E078 of 2021) [2021] KECA 98 (KLR)", Case Analysis (2021). Notice of Motion dated 17th May 2021, amended 14th July 2021 (in intended appeal from Eldoret ELC Case No. 599 of 2012). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/98/eng@2021-10-22

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