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Court of AppealDismissedNYR. Civil Application No. 36 of 2019· [2021] KECA 773 (KLR)

Nderi Mwaniki & 1 other v Jane Gachui Mwangi

Court of Appeal
19 March 2021
Martha Karambu KoomeM. K. KoomeASAsike-MakhandiaAMA. K. Murgor
1,237 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 refused to pause eviction orders because the applicants could not show the appeal would become pointless if the land orders took effect.

What this practically means

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Executive summary

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This was an application under Rule 5(2)(b) of the Court of Appeal Rules by Nderi Mwaniki and Bernard Kinyua for stay of execution of a Ruling delivered on 11th March 2019 by Waithaka, J of the Environment & Land Court at Nyeri in ELC Appeal No. 9 of 2018, dismissing their appeal against a magistrate's eviction order. The underlying dispute concerns family land of the late Mwangi Mwaniki Simon, subdivided into three parcels following awards by the Land Disputes Tribunal and the Nyeri Provincial Land Dispute Appeal Tribunal, adopted as an order of the senior resident magistrate in June 1999. The magistrate in August 2018 ordered the applicants to vacate parcels Inoi/Thaita/1001 and 1002 within thirty days, failing which they would be evicted with police assistance. Before the Court of Appeal, the applicants contended they occupied land belonging to a non-party, had lived on the land for over fifty years, and had an arguable appeal. The respondent maintained the matter had been settled by the deceased and the awards were adopted by the courts. The court applied the settled twin principles: the intended appeal must be arguable and, without stay, be rendered nugatory. It held that even if arguable, the nugatory limb failed because the orders merely directed each party to occupy their respective portions and no party would be rendered destitute. The motion was dismissed with costs to the respondent. This ruling binds subordinate courts and tribunals on the application of the Rule 5(2)(b) test as stated herein.

Key legal issues

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01

Whether the applicants met the twin test under Rule 5(2)(b) for stay of execution pending appeal

Holding

The motion failed: even assuming the appeal was arguable, the applicants did not demonstrate that refusal of stay would render the appeal nugatory since the orders simply required each party to occupy their respective portions

Reasoning

The court applied the settled Rule 5(2)(b) principles from the Thande case: an applicant must show an arguable appeal and that the appeal will be rendered nugatory without stay. The suit premises formed part of family land of the deceased, and the orders under challenge merely directed each party to occupy their allotted portions. Enforcing them would not make any party destitute, so the nugatory limb failed irrespective of arguability.

p. 2

Legal principles established

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  • An applicant under Rule 5(2)(b) must satisfy the twin principles that the intended appeal is arguable and that it will be rendered nugatory unless stay is granted
  • Where enforcement of the orders appealed from merely requires each party to occupy their allotted portions and will not render any party destitute, the nugatory test is not satisfied

Court orders

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  1. 1.The notice of motion dated 28th March, 2019 seeking stay of execution is dismissed
  2. 2.Costs of the application awarded to the respondent
On appeal from
Environment & Land Court at Nyeri
ELC Appeal No. 9 of 2018
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, "Nderi Mwaniki & 1 other v Jane Gachui Mwangi", Case Analysis (2021). NYR. Civil Application No. 36 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/773/eng@2021-03-19

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