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Court of AppealDismissedCivil (Application) No. 80 of 2019· [2021] KECA 796 (KLR)

Emilio Marangu M’ndiiri v Angero Munene Marindi

Court of Appeal
19 March 2021
974 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to stop an eviction because the applicant had already been removed from the land, leaving nothing for the court to preserve.

What this practically means

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Executive summary

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This was an application under rules 5(2)(b), 41, 42 and 47 of the Court of Appeal Rules, 2010 by Emilio Marangu M'Ndiiri seeking stay of execution of the judgment of the Environment and Land Court at Chuka (P.M. Njoroge, J) delivered on 13th December 2018 in ELC Case No. 99 of 2017, pending an intended appeal. The suit below was premised on adverse possession; the applicant's claim was dismissed and judgment entered on the respondents' counterclaim, declaring them lawful proprietors of their respective parcels and ordering his eviction from several land parcels. The applicant argued the intended appeal was arguable - contending the trial judge erred in holding that time stopped running when Meru HCCC No. 39 of 1992 was filed and that his occupation was with the respondents' consent - and that eviction would render him destitute and the appeal nugatory. The Court, applying the twin test from Republic vs Kenya Anti-Corruption Commission & 2 others, accepted the grounds were arguable since they required re-evaluation of evidence. However, on the nugatory limb, the respondents showed the applicant had already been evicted on 12th February 2021 and had taken over occupation, leaving nothing for the Court to stay. The application was dismissed with costs in the intended appeal. The decision of the trial court was not disturbed at this interlocutory stage.

Key legal issues

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01

Whether the intended appeal is arguable

Holding

Yes - the grounds concerning when time stopped running in the adverse possession claim and whether occupation was with consent are arguable, requiring re-evaluation of the evidence.

Reasoning

The applicant faulted the trial judge for holding that time stopped running when Meru HCCC No. 39 of 1992 was filed, and for finding the occupation was with consent. The Court found that determining when time stopped running or began to run would require re-evaluation of the evidence before the trial court, so those questions were properly arguable, satisfying the first limb of the rule 5(2)(b) threshold.

p. 2
02

Whether the appeal would be rendered nugatory if stay is not granted

Holding

No - the applicant had already been evicted from the suit properties on 12th February 2021 and the respondents had taken over occupation, so there was nothing for the Court to stay.

Reasoning

The respondents demonstrated, by replying affidavit and submissions, that the applicant was evicted on 12th February 2021 in an exercise overseen by the OCS Ntumu Police Station, during which houses were demolished and possession taken over. The application was therefore overtaken by events, and the applicant failed to satisfy the second limb of the rule 5(2)(b) preconditions, rendering the motion dismissible.

p. 2

Legal principles established

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  • An applicant under rule 5(2)(b) must satisfy the twin test: first, that the appeal or intended appeal is arguable; and second, that if stay is denied and the appeal succeeds, the success would be rendered nugatory.
  • Where the judgment debtor has already been evicted from the suit property and the decree-holder has taken possession, there is nothing left for the Court to stay and an application for stay of execution fails on the nugatory limb.

Court orders

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  1. 1.The Notice of Motion dated 30th May 2019 seeking stay of execution pending the intended appeal is dismissed
  2. 2.Costs in the intended appeal
On appeal from
Environment and Land Court at Chuka
ELC Case No. 99 of 2017 (formerly Meru HCC No. 73 of 2006)
Jurisdiction invoked
Rules 5(2)(b), 41, 42 and 47 of the Court of Appeal Rules, 2010

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, "Emilio Marangu M’ndiiri v Angero Munene Marindi", Case Analysis (2021). Civil (Application) No. 80 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/796/eng@2021-03-19

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