Michael Munene Kuburia & another v Sofia Muthoni & another [2021] KECA 720 (KLR)
The bottom line
#The Court of Appeal stopped an eviction, holding landowners may keep occupying disputed land while their appeal is heard.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the intended appeal is arguable
- 2.Whether the appeal would be rendered nugatory if stay of execution is not granted
Key legal issues
#Threshold for stay pending appeal under rule 5(2)(b)
The twin criteria of an arguable appeal and potential nugatoriness were both met, warranting stay of execution.
The applicants argued that the trial court failed to evaluate the evidence on the existence of a trust and instead relied on a decision in Civil Appeal No. 184 of 2008 concerning different parties and a different parcel of land. The court found such issues arguable. On nugatoriness, the applicants faced imminent eviction from land they occupied, and eviction followed by a successful appeal would render the appeal nugatory. Both criteria satisfied, the motion was allowed.
Legal principles established
#- An application under rule 5(2)(b) must satisfy the twin thresholds of an arguable appeal and the nugatory-avoidance test, the discretion being exercised judicially.
- Whether the trial court properly evaluated the evidence before it is an issue eligible for ventilation before the Court of Appeal on a rule 5(2)(b) application.
Court orders
#- 1.Stay of execution of the judgment of Cherono, J. dated 28th June 2020 in Kerugoya ELC No. 66 of 2017 pending the hearing and determination of Civil Appeal No. 143 of 2020
- 2.Costs in the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Environment and Land Court of Kenya at Nairobi (Cherono, J.)
- Kerugoya ELC No. 66 of 2017
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The Court exercises unfettered discretion which must be exercised judicially. The applicant needs to satisfy the Court that first, that the appeal or intended appeal is not frivolous, that is to say that it is an arguable appeal. Second, the Court must also be persuaded that were it to dismiss the application for stay and later the appeal or intended appeal succeeds the results or success could be rendered nugatory.
In sum, the two threshold criteria having been met the motion dated 28th September 2020 is merited, and is allowed. Costs in the appeal. It is so ordered.
Issues in the judgment
#The coram states the court is at Nyeri but the judgment is stated to be dated and delivered at Nairobi.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Michael Munene Kuburia & another v Sofia Muthoni & another [2021] KECA 720 (KLR)", Case Analysis (2021). Civil Application No. 96 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/720/eng@2021-03-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.