Emilio Marangu M’ndiiri v Angero Munene Marindi
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the intended appeal is arguable
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.
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.
Whether the appeal would be rendered nugatory if stay is not granted
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.
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.
Legal principles established
#- 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
#- 1.The Notice of Motion dated 30th May 2019 seeking stay of execution pending the intended appeal is dismissed
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.