Flavemart Enterprises Limited v Kenya Railways Corporation (Civil Application 50 of 2020) [2021] KECA 334 (KLR)
The bottom line
#Kenya's Court of Appeal paused Flavemart's eviction pending its appeal, confirming a stay can be granted even when procedural defects are raised without a formal striking-out application.
What this practically means
#Executive summary
#Key legal issues
#Competence of the application where no record of appeal was filed within 60 days
The court declined to fault the notice of appeal because the respondent did not file a cross-application under Rules 83 or 84; the application was therefore properly before the court.
Rules 83 and 84 set out the procedure for deeming a notice of appeal withdrawn or striking it out where an essential step has not been taken within the prescribed time. Rule 84 imposes a 30-day limitation on such striking-out applications. Since the respondent made no such application and sought to raise the defect only through written submissions, the court declined the invitation and proceeded to determine the stay application on its merits.
Arguability of the intended appeal
The intended appeal was arguable because there is a bona fide contestation over ownership of the suit property.
Applying the principles in Stanley Kang'ethe Kinyanjui v Tony Ketter, the court held that an arguable point need not succeed but must deserve consideration. The contest over ownership of the suit property - including the applicant's incorporation date relative to title issuance and the chain of transfers - raised at least one bona fide arguable ground, without making definitive findings that would embarrass the bench hearing the main appeal.
Nugatory value if stay is refused
Stay was granted because eviction was imminent and the applicant faced hardship, with the conflicting claims of the parties weighing in favour of the applicant.
The court weighed the conflicting claims: the respondent claimed it had sold the property to Dube Holdings Limited, a claim the applicant disputed, while the applicant faced imminent eviction, potential demolition, and loss of rental income from developed premises. The court found the balance of the scales of justice tilted towards granting stay given the risk of eviction and hardship.
Legal principles established
#- An applicant under Rule 5(2)(b) must demonstrate both that the appeal is arguable and that it will be rendered nugatory absent stay; both limbs must be satisfied.
- An arguable appeal is one that is not frivolous and ought to be argued fully; the court must not make definitive or final findings of fact or law at the interlocutory stage.
- A party seeking to fault an allegedly incompetent notice of appeal must follow the procedure in Rules 83 and 84 of the Court of Appeal Rules, including the 30-day time limit for a striking-out application; the court will not fault a notice of appeal through submissions alone.
Court orders
#- 1.The Notice of Motion dated 6th May, 2020 is allowed
- 2.Stay of execution of the judgment and decree of the High Court delivered on 15th November, 2019, pending the hearing and determination of the intended appeal
- 3.Costs of the application to abide by the outcome of the intended appeal
- On appeal from
- Environment and Land Court (High Court), Bungoma/Kisumu
- ELC Case 48 of 2013
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules (discretionary original jurisdiction pending appeal)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Flavemart Enterprises Limited v Kenya Railways Corporation (Civil Application 50 of 2020) [2021] KECA 334 (KLR)", Case Analysis (2021). Civil Application (Rule 5(2)(b)) arising from Bungoma ELC Case 48 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/334/eng@2021-12-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.