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Court of AppealDismissedCivil Application No. 183 of 2019· [2021] KECA 801 (KLR)

Joshua Ngatu v Jane Mpinda & 3 others

Court of Appeal of Kenya
19 March 2021
RNR. N. NambuyeASAsike-MakhandiaSKS. Ole Kantai
1,105 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to stop enforcement of a land ruling because the applicant showed no arguable appeal and there was nothing left to stay.

What this practically means

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Executive summary

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This was an interlocutory application before the Court of Appeal at Nyeri under Rule 5(2)(b) of the Court of Appeal Rules, 2010, in which Joshua Ngatu sought a stay of execution of the ruling of Lucy N. Mbugua, J delivered on 13th November, 2019 in Meru ELC Case No. 15 of 2018, together with all consequential orders. The applicant, having filed a notice of appeal dated 26th November, 2019, feared eviction from land his family had lived on throughout their lives and asserted that the intended appeal was arguable with overwhelming prospects of success. The first to third respondents opposed, contending that the High Court had twice declined stay because the order of 20th February, 2019 was negative in nature and incapable of being stayed, that no draft Memorandum of Appeal had been annexed to demonstrate arguability, that the appeal could not be rendered nugatory as there was no threat of disposal of the substratum, and that the decree had already been executed. The fourth respondent additionally argued that the notice of appeal was lodged out of time under Rules 75(2) and 77(1), and that the application impermissibly sought to stay a negative order. Applying the settled principles from Stanley Kengethe Kinyanjui v Tonny Ketter & 5 Others, the Court found both limbs of the threshold unsatisfied: there was no draft Memorandum or discernible grounds of appeal, and there was nothing to stay because the decree had been executed and the order was negative. The application was dismissed with costs to the respondents. The decision below was not disturbed, the ruling being a stay application only.

Key legal issues

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01

Whether the applicant satisfied the twin limbs of the Rule 5(2)(b) threshold for stay of execution pending appeal

Holding

Both limbs failed. No draft Memorandum of Appeal or grounds were provided to demonstrate arguability, and the applicant did not controvert the respondents' contentions that the decree had been executed and that the order was negative in nature, leaving nothing to stay.

Reasoning

The Court took the guiding principles from Stanley Kengethe Kinyanjui v Tonny Ketter & 5 Others: the applicant must show an arguable appeal and that the appeal would be rendered nugatory without stay. The applicant annexed no draft Memorandum of Appeal and identified no discernible grounds. On the nugatory limb, the respondents' uncontroverted averments showed no threat of dispossession of the substratum, the decree had been executed, and the impugned order was negative and incapable of being stayed.

p. 2

Legal principles established

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  • An applicant under Rule 5(2)(b) must first demonstrate an arguable appeal, which need not ultimately succeed but must warrant interrogation by the Court, and second that the appeal will be rendered nugatory if stay is not granted.
  • A negative order cannot be stayed; there must be something capable of execution to attract relief under Rule 5(2)(b).

Court orders

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  1. 1.The Notice of Motion dated 10th December, 2019 seeking stay of execution of the Ruling of Mbugua, J dated 13th November, 2019 is dismissed
  2. 2.Costs of the application awarded to the Respondents
On appeal from
High Court of Kenya at Meru (Environment and Land Court)
Meru ELC Case No. 15 of 2018
Jurisdiction invoked
Rule 5(2)(b) 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, "Joshua Ngatu v Jane Mpinda & 3 others", Case Analysis (2021). Civil Application No. 183 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/801/eng@2021-03-19

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