Fmw v Lww
The bottom line
#The Court of Appeal refused to pause a land ruling because the claim was filed too late and the applicant showed no risk of losing the property.
What this practically means
#Executive summary
#Key legal issues
#Arguability of the intended appeal
The intended appeal was not arguable; the undisputed facts showed a 1990 transfer, a 1990 caution but a suit filed only in 2014, so the limitation bar under Section 7 of the Limitation of Actions Act was likely fatal, and the grounds of appeal were general and raised no fraud issue
The court examined the impugned judgment and found undisputed facts: the transfer occurred on 2nd April 1990, a caution was lodged on 12th October 1990, yet the suit was only filed on 13th June 2014, well beyond the 12-year limitation period for land claims. The intended grounds — wrong exercise of discretion and disregard of evidence — were general and did not raise the fraud allegations.
Nugatory-ness and the effect of a negative order
The dismissal of the suit was a negative order not capable of stay; the only positive order, lifting the caution, would if stayed perpetuate a caution existing for over 23 years, and no evidence showed the respondent intended to dispose of or alter the suit property
The court held that the dismissal was not capable of stay, and that staying the order lifting the caution would prejudice the successful litigant who is entitled to enjoy the fruits of her litigation. The applicant offered no evidence of intended disposal, so the nugatory limb also failed, and stay would defeat the overriding objective under Sections 3A and 3B of the Appellate Jurisdiction Act.
Legal principles established
#- An applicant under Rule 5(2)(b) must satisfy the twin requirements of an arguable appeal and that the appeal would be rendered nugatory if stay is not granted
- A claim to land must be filed within 12 years under Section 7 of the Limitation of Actions Act
- A dismissal of a suit is a negative order not capable of stay
- The right of appeal must be balanced against the right of a successful litigant to enjoy the fruits of litigation, and a party indolent in pursuing litigation cannot seek stay after inordinate delay
Court orders
#- 1.The applicant's notice of motion dated 3rd February 2021 is dismissed
- 2.No costs awarded, the dispute being between family members
- On appeal from
- Environment and Land Court, Nairobi
- ECL Case No. 763 of 2014
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules; Sections 3A & 3B of the Appellate Jurisdiction Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Fmw v Lww", Case Analysis (2021). Civil Application No. E038 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/426/eng@2021-07-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.