Joyce Mutethya Kimanthi v Timothy Kimanzi Kiiva & 2 others
The bottom line
#Kenya's Court of Appeal protected a landowner's possession pending her appeal, but confirmed that dismissal judgments cannot be stayed—only injunctions can protect the property.
What this practically means
#Executive summary
#Key legal issues
#Invocation of jurisdiction under Rule 5(2)(b)
Jurisdiction was properly invoked as a notice of appeal was in place in accordance with Rule 75.
The Court restated that its mandate under Rule 5(2)(b) is original, independent and discretionary, and that it is seized of a matter only after a notice of appeal is filed under Rule 75. Having confirmed a notice of appeal dated 30th July, 2021 was on record, the Court found the threshold for invoking its jurisdiction satisfied, relying on Githunguri vs. Jimba Credit Corporation Ltd and Safaricom Ltd vs. Ocean View Beach Hotel Ltd.
Arguability of the intended appeal
The seven grounds of appeal raised in the memorandum of appeal are arguable; the intended appeal is not frivolous.
The Court reconsidered the seven grounds, which included claims of constructive trust, lack of valid sale agreements and land control board consents, fraud, and lack of pleadings supporting the trial court's findings. It held that arguable means the grounds warrant the Court's interrogation and the respondents' response, that a single bona fide arguable ground suffices, and that an arguable appeal need not necessarily succeed.
Whether the intended appeal would be rendered nugatory
The nugatory ingredient was satisfied given the threat of sale of the suit properties to third parties and the lapse of prior injunctive protection upon delivery of the High Court judgment.
The applicant asserted a threat of disposal of the suit properties to third parties, which form the substratum of the intended appeal, and that she had enjoyed injunctive protection from the High Court which lapsed upon delivery of judgment. The Court found the nugatory ingredient satisfied, noting that whether an appeal is rendered nugatory depends on whether what is sought to be stayed is reversible or compensable in damages.
Whether stay or injunction is the appropriate relief
Because the High Court's final order was a negative order incapable of being stayed, only an injunction could issue.
The Court accepted the respondents' correct contention that the High Court's final order was a negative order. Citing Nairobi Metropolitan PSV Saccos Union Limited, it noted there is no jurisdiction under Rule 5(2)(b) to stay a dismissal or striking out, or where no party was ordered to do or refrain from doing anything capable of being restrained. It therefore granted the injunction in prayer 5 of the Motion.
Right to be heard on the intended appeal
It was fair and just that the applicant be heard on her intended appeal and that the suit properties be preserved pending the hearing.
The Court invoked authority holding that the right to a hearing is constitutionally entrenched and the cornerstone of the rule of law, and that a decision reached in violation of the right to be heard will be nullified as a breach of natural justice. Applying these principles to the litigation's circumstances, it concluded the applicant should be accorded an opportunity to be heard and the properties preserved.
Legal principles established
#- A negative order, such as a dismissal or striking out, or where the court did not order any party to do or refrain from doing anything capable of being restrained, is incapable of being stayed and no relief under Rule 5(2)(b) lies in respect of it.
- The court's jurisdiction under Rule 5(2)(b) is original, independent and discretionary, and requires satisfaction of twin principles: an arguable appeal and that the appeal will be rendered nugatory if relief is not granted.
- An applicant must satisfy both of the twin principles before relief under Rule 5(2)(b) can be granted.
- The jurisdiction under Rule 5(2)(b) arises only where a notice of appeal has been lodged.
Court orders
#- 1.Pending the hearing and determination of the intended appeal, the Respondents, their servants, agents and/or employees are restrained by way of a permanent injunction from entering, remaining on, cutting trees, cutting fodder, cutting plants, constructing on, building on and/or in any other manner from interfering with the Applicant's quiet possession, occupation and enjoyment of Land Parcels Nos. Matinyani/Kalimani/231, Matinyani/Kalimani/224, Matinyani/Kalimani/899 and Kyangwithya/Thungutu/1153
- 2.Costs shall abide the result of the appeal
- On appeal from
- High Court of Kenya (Environment and Land Court, Machakos), on appeal from the trial court
- Machakos ELC Appeal No. 10 of 2017
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules, 2010, supported by sections 3A and 3B of the Appellate Jurisdiction Act
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- CKK Estates (1973) Ltd v General & 4 others (Civil Application E162 of 2025) [2025] KECA 1741 (KLR)[2025] KECA 1741 (KLR)24 Oct 2025applied
Cite this brief
#Cite this brief
Caselaw, "Joyce Mutethya Kimanthi v Timothy Kimanzi Kiiva & 2 others", Case Analysis (2021). Civil Application (Rule 5(2)(b)) arising from Machakos ELC Appeal No. 10 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/283/eng@2021-12-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.