Reuben Kioko Mutyaene v Endermann Property Limited &another; [2021] KECA 427 (KLR)
The bottom line
#Kenya's Court of Appeal refused to halt a property sale dispute ruling, confirming that dismissed cases producing refund orders cannot be stayed.
What this practically means
#Executive summary
#Key legal issues
#Whether the intended appeal is arguable
The applicant surmounted the first hurdle, as arguability requires only one bona fide ground and does not require the appeal to be shown likely to succeed.
The court restated that an arguable appeal is not one which must necessarily succeed but one which ought to be argued, and that a single bona fide ground suffices. The applicant's claims that his right to property was infringed, that the suit property was likely to be sold to a third party, and that the termination of the sale agreement was illegal were held sufficient to cross the arguability threshold.
Whether the intended appeal would be rendered nugatory absent the orders sought
No. The judgment below merely dismissed the applicant's petition and ordered refund of the deposit less 10%; the applicant showed no risk of substantial loss, so the application failed the second limb.
Relying on Catherine Njeri Maranga v Serah Chege, the court held that an order dismissing an application is a negative order incapable of execution save perhaps for costs. The applicant remained in the position he occupied before coming to court, so no substantial loss was demonstrated and the nugatory-ness inquiry did not arise. The twin requirements were therefore not satisfied.
Legal principles established
#- An applicant under Rule 5(2)(b) must satisfy the twin tests that the intended appeal is arguable and that, unless the orders sought are granted, the appeal will be rendered nugatory.
- A single bona fide ground of appeal suffices to establish that an appeal is arguable.
- A negative order, such as dismissal of a suit, is incapable of execution and therefore incapable of stay; the nugatory-ness test does not arise because the applicant loses nothing.
- The same principles apply to an application for stay of execution, stay of further proceedings, or an injunction pending appeal.
Court orders
#- 1.The application dated 6th March 2020 for stay of execution, stay of further proceedings and injunction is dismissed
- 2.The applicant to pay costs of the application
- On appeal from
- Environment and Land Court at Machakos
- ELC Petition No. 19 of 2018
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Reuben Kioko Mutyaene v Endermann Property Limited &another; [2021] KECA 427 (KLR)", Case Analysis (2021). Civil Application (NAI) No. 70 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/427/eng@2021-07-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.