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Court of AppealDismissedNot stated in the judgment· [2021] KECA 204 (KLR)

Nyari House Limited v Muthaiga North Residents Association & 2 others

Court of Appeal
5 November 2021
899 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~4 min to read original · ~4 min brief

The bottom line

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The Court of Appeal refused to pause land court proceedings because the intended appeal lacked merit and the applicant showed no real loss.

What this practically means

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Executive summary

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The applicant, through its Director Daniel Kamita Gichuhi, sought a stay of all proceedings in the Environment and Land Court at Nairobi pending an intended appeal against conservatory orders restraining it and the 2nd respondent from entering, transferring or building on LR No. 28181 Nairobi, and from approving development of that property. The application was brought under Rule 5(2)(b) of the Court of Appeal Rules. The 1st respondent opposed, contending that the intended appeal was not arguable, that the petition concerned the validity of a title over public land and was a matter of public interest, and that no final declaration on the title had yet been issued. Applying the settled twin principles for Rule 5(2)(b) applications - arguability and the nugatory test - the Court of Appeal (Koome, Asike-Makhandia and Sichale, JJA) found the draft grounds of appeal not arguable, since the conservatory orders were intended to preserve the suit property pending determination of competing private and public interests. On the nugatory limb, the applicant failed to demonstrate the loss it would suffer, and the petition may already have proceeded to hearing and conclusion; granting a stay would amount to acting in vain and would defeat the overriding objective of just and expeditious disposal of suits. The motion was dismissed with costs to the 1st respondent.

Key legal issues

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01

Whether the intended appeal was arguable under Rule 5(2)(b)

Holding

The Court found the draft grounds of appeal not arguable.

Reasoning

The Court perused the record and found that the draft Memorandum of Appeal hinged on a notice of motion dated 12th May 2017 whose grounds were for appeal rather than review, and that the conservatory orders issued by the ELC were meant to preserve the suit property. The competing interests of the applicant (private acquisition) and the 1st respondent (public use) did not, in the Court's view, raise arguable grounds.

p. 2
02

Whether the intended appeal would be rendered nugatory absent stay

Holding

The applicant failed to demonstrate the loss it would suffer, and the petition may already have proceeded to conclusion, so the nugatory test was not satisfied.

Reasoning

The applicant did not demonstrate the kind of loss it would suffer absent stay. The petition had been scheduled for mention to confirm filing of submissions, and may well have proceeded to hearing and conclusion. Granting stay at that stage would amount to acting in vain and would defeat the overriding objective of just and expeditious disposal of suits.

p. 2

Legal principles established

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  • An applicant under Rule 5(2)(b) must demonstrate that the appeal or intended appeal is arguable (not frivolous) and that it would be rendered nugatory absent stay.
  • The purpose of a Rule 5(2)(b) stay is to preserve the substratum of the appeal.
  • The Court will not grant a stay where it would be acting in vain, having regard to the overriding objective of just and expeditious disposal of suits.

Court orders

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  1. 1.The Motion seeking stay of proceedings in the ELC pending the intended appeal is dismissed
  2. 2.Costs of the Motion awarded to the 1st respondent
On appeal from
Environment and Land Court, Nairobi
Not stated in the judgment
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, "Nyari House Limited v Muthaiga North Residents Association & 2 others", Case Analysis (2021). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/204/eng@2021-11-05

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