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Court of AppealDismissedApplication dated 18th March 2021 (Court of Appeal, Mombasa)· [2021] KECA 319 (KLR)

Tropical Treasure Limited v Charo Manyule Mangi & 3 others

Court of Appeal of Kenya
17 December 2021
SKS. Gatembu KairuPNP. NyamweyaJLJ. Lesiit
514 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to halt enforcement of a land ruling because the company waited too long to ask and the disputed title transfer had already been cancelled.

What this practically means

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Executive summary

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The Court of Appeal at Mombasa (Gatembu Kairu, Nyamweya and Lesiit, JJ.A) dismissed an application by Tropical Treasure Limited dated 18th March 2021 seeking a stay of execution of the judgment and decree of the Environment and Land Court delivered on 24th October 2019. The ELC had allowed the respondents' suit and declared null and void the transfer to the applicant of LR No. 28534 Kilifi, ordering rectification of the register to revert ownership to the 1st and 2nd respondents as administrators of the estate of Manyale Mangi Yaa (Deceased). The ELC found that although the administrators had contracted to sell the property for Kshs. 41,500,000, the transfer was irregular, the respondents were hoodwinked into prematurely signing the transfer, and only Kshs. 2,200,000 of the purchase price had been paid. Applying the settled twin test under Rule 5(2)(b) of the Court of Appeal Rules, as articulated in Stanley Kangethe Kinyanjui v Tony Keter, the court found the intended appeal arguable but held the application had nonetheless failed: the transfer had already been cancelled and title reverted to the respondents, one of whom had since died, and the application was filed considerably long after the ELC judgment. The application was dismissed with costs to the 1st and 2nd respondents. The decision below was not disturbed; this was an interlocutory application rather than the hearing of the intended appeal.

Key legal issues

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Whether the twin test for stay under Rule 5(2)(b) was met

Holding

The intended appeal was held arguable, but the nugatory-prong failed because the transfer had already been cancelled and the title reverted, and the application was filed long after the judgment.

Reasoning

The court applied the settled twin test from Stanley Kangethe Kinyanjui v Tony Keter: arguability and nugatory effect. Although satisfied the intended appeal was arguable, the court found that the subject transfer had already been cancelled with title reverted to the respondents, and that the applicant had delayed considerably in bringing the application after the ELC judgment. Both factors meant refusing stay would not render any successful appeal nugatory. The application therefore failed.

p. 2

Legal principles established

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  • An applicant under Rule 5(2)(b) of the Court of Appeal Rules must demonstrate that the intended appeal is arguable and that, if the orders sought are not granted, the successful intended appeal will be rendered nugatory.

Court orders

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  1. 1.The applicant's application dated 18th March 2021 seeking stay of execution is dismissed
  2. 2.Costs of the application awarded to the 1st and 2nd respondents
On appeal from
Environment and Land Court
not stated
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules (interim orders pending intended appeal)

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, "Tropical Treasure Limited v Charo Manyule Mangi & 3 others", Case Analysis (2021). Application dated 18th March 2021 (Court of Appeal, Mombasa). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/319/eng@2021-12-17

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