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Court of AppealAllowedCivil Application No. 159 of 2019· [2021] KECA 721 (KLR)

Samuel Waiya Githukurio v Stephen Mungai Wai & 3 others

Court of Appeal of Kenya
19 March 2021
1,351 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Court of Appeal halted all related land proceedings, confirming that even someone excluded from tribunal cases can freeze them pending appeal.

What this practically means

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Executive summary

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This was a single-judge-panel-free ruling of the Court of Appeal at Nakuru (Koome, M'Inoti and Murgor, JJ.A.) on a Rule 5(2)(b) application by Samuel Waiya Githukurio seeking a stay of proceedings pending his appeal, Nakuru Civil Appeal No. 75 of 2019, against Oundo, J.'s ruling of 25 June 2019 striking out his constitutional petition (Nyahururu ELC Petition No. 20 of 2017) on preliminary objection. The applicant, though never a party to Land Dispute Case No. 28 of 2004 before the Ol Kalau Division Land Disputes Tribunal, was affected by its award, which was upheld on appeal and adopted as a decree in Nyahururu PMCC Land Dispute No. 45 of 2009, resulting in the excision of parts of his land. The High Court judge held that although the tribunals had exceeded their jurisdiction, the award had crystallised upon adoption as a judgment of the Magistrate's Court and could only be varied or set aside by that court or an appellate court, not by way of a constitutional petition. The Court of Appeal found the intended appeal eminently arguable - the applicant was a stranger to the tribunal proceedings yet suffered execution from an award the judge found was issued without jurisdiction - and that the appeal would be rendered nugatory because the 1st respondent was proceeding to tax bills of costs. The application was allowed in terms of prayer 3: proceedings in Nyahururu CMC No. 140B of 2018 and Nyahururu ELC Petition No. 20 of 2017 were stayed pending the hearing and determination of the appeal, with no order as to costs.

Key legal issues

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01

Test for granting stay of proceedings/injunction pending appeal under Rule 5(2)(b)

Holding

The applicant must show the appeal is arguable and that refusal of the order would render it nugatory; both limbs must be satisfied.

Reasoning

The court restated the settled twin principles governing Rule 5(2)(b) applications, drawing on Ismael Kagunji Thande v Housing Finance Kenya Ltd. The jurisdiction is original but discretionary, and both the arguability and nugatory limbs must be established before the court may grant the order sought.

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02

Arguability of the intended appeal

Holding

The appeal was eminently arguable because the applicant was a stranger to the tribunal proceedings whose adopted award nonetheless led to the excision of his land, and the judge found those awards were made without jurisdiction.

Reasoning

The court identified two arguable points: the applicant was not a party to the tribunal proceedings yet was affected by the award adopted by the Magistrate's Court, and his land was excised in execution of orders the learned Judge found were made without jurisdiction. Citing Ahmed Musa Ismael, one such bona fide point suffices.

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03

Whether the appeal would be rendered nugatory absent a stay

Holding

Yes - the 1st respondent was proceeding to tax bills of costs and further proceedings could prejudice the applicant and render a successful appeal nugatory.

Reasoning

The applicant demonstrated that taxation of bills of costs was imminent and that further proceedings in the subordinate matters could ensue to his detriment. The court answered the nugatory limb in the affirmative and allowed the application in terms of prayer 3 of the Notice of Motion.

p. 2

Legal principles established

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  • An applicant under Rule 5(2)(b) must demonstrate both that the appeal is arguable and that it will be rendered nugatory if stay is not granted.
  • A single arguable point suffices for an arguable appeal; it need not be a point that must succeed.

Court orders

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  1. 1.Pending the hearing and determination of Nakuru Civil Appeal No. 75 of 2019, a stay of proceedings in Nyahururu CMC No. 140B of 2018 and Nyahururu ELC Petition No. 20 of 2017
  2. 2.No order as to costs
On appeal from
Environment and Land Court, Nyahururu
Nyahururu ELC Petition No. 20 of 2017
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Samuel Waiya Githukurio v Stephen Mungai Wai & 3 others", Case Analysis (2021). Civil Application No. 159 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/721/eng@2021-03-19

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.