Samuel Waiya Githukurio v Stephen Mungai Wai & 3 others
The bottom line
#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
#Executive summary
#Key legal issues
#Test for granting stay of proceedings/injunction pending appeal under Rule 5(2)(b)
The applicant must show the appeal is arguable and that refusal of the order would render it nugatory; both limbs must be satisfied.
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.
Arguability of the intended appeal
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.
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.
Whether the appeal would be rendered nugatory absent a stay
Yes - the 1st respondent was proceeding to tax bills of costs and further proceedings could prejudice the applicant and render a successful appeal nugatory.
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.
Legal principles established
#- 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
#- 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.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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.