Edwin K. Too v Paul K. Sitienei [2021] KECA 663 (KLR)
The bottom line
#The Court of Appeal dismissed a landowner's bid to freeze enforcement of a consent judgment because showing an arguable appeal alone is not enough.
What this practically means
#Executive summary
#Key legal issues
#Test for stay/injunction pending appeal under Rule 5(2)(b)
The applicant must demonstrate both that the intended appeal is arguable and that it will be rendered nugatory if stay is not granted; both limbs must be satisfied.
The Court restated the settled principles from Ishmael Kagunyi Thande v Housing Finance Company Limited: the Rule 5(2)(b) jurisdiction is original and discretionary, guided by the twin principles of arguability and nugatory-ness. The applicant established arguability regarding the propriety of the consent judgment, but the Court found the respondent in possession with no intention shown to dispose of the property or change its character, so the nugatory limb failed.
Meaning of 'nugatory' and burden on impecunity claims
'Nugatory' means not only worthless, futile or invalid but also trifling; whether an appeal is rendered nugatory depends on whether what is sought to be stayed is reversible or compensable in damages.
The Court adopted the Kang'ethe Kinyanjui criteria, including that where an applicant alleges the appeal will be rendered nugatory on account of the respondent's impecunity, the onus shifts to the respondent to rebut. Here the applicant did not establish that eviction or other action by the respondent, who held possession, would render a successful appeal irreversible.
Whether the intended appeal was arguable
The appeal was arguable on the question whether the application to set aside the consent judgment met the requisite threshold, without delving into the merits.
The applicant challenged a consent judgment entered by his erstwhile advocates, claiming lack of instructions. The Court held that a bona fide arguable ground suffices and refrained from making conclusions that might prejudice the hearing of the intended appeal. Arguability alone, however, did not entitle the applicant to stay.
Legal principles established
#- An applicant under Rule 5(2)(b) must satisfy both limbs: that the appeal is arguable and that it will be rendered nugatory absent stay; satisfying one limb alone is insufficient.
- An arguable point is not one that must succeed but merely one deserving of consideration by the Court.
- In determining whether an appeal will be rendered nugatory, the Court considers the conflicting claims of both parties and each case is determined on its merits.
Court orders
#- 1.The Notice of Motion dated 28th April, 2020 is dismissed with costs
- On appeal from
- High Court of Kenya at Eldoret
- E&L Appeal Case No. 6 of 2014
- 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, "Edwin K. Too v Paul K. Sitienei [2021] KECA 663 (KLR)", Case Analysis (2021). Civil Application No. 93 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/663/eng@2021-04-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.