Raymond Ruto & 5 others v Stephen Kibowen [2021] KECA 745 (KLR)
The bottom line
#The Court of Appeal refused to pause a Nakuru land case, confirming Kenyan courts grant stays of proceedings only in exceptional circumstances.
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 applicants' intended appeal is arguable and not frivolous
- 2.Whether, if the stay of further proceedings is not granted, the intended appeal will be rendered nugatory if it succeeds
Key legal issues
#Whether the intended appeal against the ELC ruling on transfer/consolidation was arguable
It was not arguable; the intended appeal merely attacked the Judge's exercise of discretion on territorial jurisdiction and filing precedence, and the appellate bench hearing the appeal would determine those grounds.
The court noted it is common ground that the suit premises is located in Nakuru, and that the ELC Judge relied on practice directions requiring land cases to be filed in the nearest Environment and Land Court, together with the fact that the Nakuru suit was filed first (2015) before the Eldoret suit (2017). The applicants' challenge went only to the exercise of discretion, which the Court was not persuaded was arguable on the face of the application.
Whether the appeal would be rendered nugatory absent a stay of proceedings
It would not; the dispute remained undetermined, the applicants would retain a right of appeal, and any loss arising from the challenged sale was compensable in money.
The Court held that the dispute between the parties had not yet been determined, and that even an adverse determination would not extinguish the applicants' rights, since they would have a right of appeal. Further, the subject of the litigation was a sale of land whose loss, if established, was capable of monetary compensation, so the success of the appeal would not be rendered illusory by continued proceedings.
Legal principles established
#- An order for stay of proceedings under Rule 5(2)(b) is granted sparingly and only in exceptional circumstances, as it interrupts the other party's right to conduct their hearing.
- An applicant under Rule 5(2)(b) must demonstrate both that the appeal (or intended appeal) is arguable and that the appeal will be rendered nugatory if the stay is not granted.
- An appeal based merely on the exercise of judicial discretion is, on the face of the application, not arguable without more.
- An appeal is not rendered nugatory merely because proceedings below proceed to conclusion, where the losing party retains a right of appeal and any loss can be compensated in monetary terms.
Court orders
#- 1.Dismissal of the applicants' notice of motion dated 29th July 2020 seeking a stay of further proceedings in the Nakuru matter
- 2.Costs of the motion to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the judgment
Wrote the judgment
- On appeal from
- Environment and Land Court at Nakuru
- NKR. ELC No. 174 of 2015
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules (intended appeal from a ruling of the Environment and Land Court)
Relief refused
#Stay of further proceedings in Nakuru ELC No. 174 of 2015 pending the hearing and determination of the intended appeal
The applicants failed to satisfy the twin principles under Rule 5(2)(b): the intended appeal was not shown to be arguable, and any loss could be compensated in monetary terms
Costs
The motion is dismissed with costs to the respondent.
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.
We acknowledge at the outset, that a court will sparingly and only in exceptional circumstances will it grant an order to stay of proceedings which essentially is an interruption of the other parties right to conduct their hearing.
For an applicant to succeed, he must not only show that his appeal or intended appeal is arguable but also that unless the Court grants him an injunction or stay as the case may be, the success of that appeal will be rendered nugatory.
The stay of proceedings is a serious, grave and fundamental interruption in the right that a party has to conduct his litigation towards the trial on the basis of the substantive merits of his case, and therefore the court’s general practice is that a stay of proceedings should not be imposed unless the proceeding beyond all reasonable doubt ought not to be allowed to continue.
Accordingly, the applicants have not satisfied the twin principles to warrant an order of stay of the proceedings. The motion is dismissed with costs to the respondent.
Issues in the judgment
#The citation of Githunguri vs. Jimba Credit Corporation Ltd. No. 2 appears internally inconsistent as to the year of the law report citation.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Raymond Ruto & 5 others v Stephen Kibowen [2021] KECA 745 (KLR)", Case Analysis (2021). Civil Application No. 74 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/745/eng@2021-03-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.