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Court of AppealAllowedCivil Application No. NAI. of 2021 (Rule 5(2)(b) motion dated 8th March 2021), arising from Kakamega ELC 501 of 2014· [2021] KECA 148 (KLR)

Ayaga Sangale v Mary Khasona Shibiro

Court of Appeal
19 November 2021
958 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal halted the transfer of a family land parcel won through adverse possession, because executing the decree before the appeal would make the appeal pointless.

What this practically means

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Executive summary

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By a notice of motion dated 8th March 2021 under Rule 5(2)(b) of the Court of Appeal Rules, Ayaga Sangale sought stay of execution of the judgment and decree of the Environment and Land Court (Matheka, J) delivered on 23rd February 2021 in Kakamega ELC 501 of 2014, which declared Mary Khasona Shibiro owner of parcel Tiriki/Shamakhokho/1103 by adverse possession and ordered him to transfer it within 90 days, with the Deputy Registrar to sign the transfer in default. He also sought an injunction restraining the Deputy Registrar from signing the transfer documents pending an intended appeal. He argued the appeal was arguable and would be rendered nugatory if the property were transferred and he evicted. There was no response from the respondent. The Court, Okwengu, Makhandia and Sichale, JJA, restated the settled twin principles: arguability and nugatoriness. It found a single bona fide issue sufficient, and was persuaded that the ground that the learned Judge determined the subject matter at an interlocutory stage engaged the Court's mind. On nugatoriness, applying Reliance Bank v Norlake, it held that transfer and possible eviction could place the property out of reach, rendering a successful appeal futile. The Court found both limbs satisfied and granted prayers 2 and 3 - stay of execution and the injunction - with costs in the appeal. This ruling binds subordinate courts and tribunals on the Rule 5(2)(b) test it restates.

Key legal issues

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01

Arguability of the intended appeal

Holding

The Court found the appeal arguable because the question whether the learned Judge determined the subject matter of the suit at an interlocutory stage was sufficient to engage the Court's mind on appeal.

Reasoning

The applicant attached a draft memorandum of appeal raising six grounds faulting the findings on adverse possession and on the legality of the transfer to him. Applying the settled test from Kang'ethe Kinyanjui and Kenya Tea Growers, a single bona fide issue suffices. The Court was persuaded that the interlocutory-determination ground was bona fide and deserving of consideration, so the arguability limb was satisfied without evaluating the merits in depth.

p. 2
02

Nugatory aspect of the intended appeal

Holding

Transfer of the suit property and possible eviction of the applicant would render the appeal futile even if successful, so the nugatory limb was satisfied.

Reasoning

Relying on Reliance Bank v Norlake, the Court considered the effect of allowing the decree to be executed. If the property were transferred and the applicant evicted, the respondent could deal with the property as she wished and place it out of reach, making success on appeal futile and the reversal difficult or impossible. The applicant's fear of substantial loss and nugatoriness was therefore justified, warranting stay pending appeal.

p. 2

Legal principles established

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  • An applicant under Rule 5(2)(b) must satisfy the twin principles that the appeal is arguable and that unless stay is granted it would be rendered nugatory.
  • An arguable appeal need only raise one bona fide issue worthy of determination; it need not be one that must succeed.

Court orders

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  1. 1.Stay of execution of the judgment and decree of the ELC in Kakamega ELC 501 of 2014 pending the hearing and determination of the intended appeal (prayer 2)
  2. 2.Injunction restraining the Deputy Registrar from signing the transfer documents to effect transfer to the respondent pending the hearing and determination of the intended appeal (prayer 3)
  3. 3.Costs of the application to be in the appeal
On appeal from
Environment and Land Court
Kakamega ELC 501 of 2014
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Ayaga Sangale v Mary Khasona Shibiro", Case Analysis (2021). Civil Application No. NAI. of 2021 (Rule 5(2)(b) motion dated 8th March 2021), arising from Kakamega ELC 501 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/148/eng@2021-11-19

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