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Court of AppealDismissedCivil Application No. NYR 155 of 2018· [2021] KECA 825 (KLR)

Samuel Mwehia Gitau v John Muturi Ng’ang’a & 2 others

Court of Appeal
19 March 2021
Martha Karambu KoomeM. K. KoomeKMK. M'inotiAMA. K. Murgor
735 words in judgment
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The bottom line

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The Court of Appeal refused to pause enforcement of a land judgment because the applicant offered fears, not evidence, that his appeal would be wasted.

What this practically means

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Executive summary

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The applicant, Samuel Mwehia Gitau, moved the Court of Appeal at Nakuru by motion dated 4th December 2018 seeking stay of execution of the judgment of the Environment and Land Court at Nakuru (Ohungo, J.) dated 20th November 2018, which dismissed his suit seeking a declaration that a sale agreement over Nakuru/Rotharini/3 with the respondents was null and void for want of Land Control Board consent, together with an injunction. The learned judge had found the purchase price was Kshs 630,000 with Kshs 550,000 paid, extended the time to obtain consent by six months, and directed execution of documents and payment of the balance. In the application, the applicant contended that the intended appeal was arguable and that he was apprehensive the registrar would transfer the property to the respondents, who might in turn transfer it to third parties. The respondents did not file a replying affidavit. Applying the two-limb test under rule 5(2)(b) of the Court of Appeal Rules, the court found the intended appeal arguable but held the nugatory limb failed: the respondents had been in possession since 2007, showed no intention to dispose of the property, and any transfer could be easily undone on a successful appeal. The court refused to act on conjecture unsupported by evidence and dismissed the application with costs to the respondents. This is a single-judgment ruling of the full bench; it does not disturb the decision of the Environment and Land Court, which remains in effect.

Key legal issues

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01

Whether the intended appeal was arguable

Holding

The intended appeal was arguable, since an arguable appeal need not succeed nor raise many issues.

Reasoning

The court applied the established test that an arguable appeal is one that is not frivolous, and a single bona fide issue deserving of full consideration suffices. The applicant's challenge to the extension of time for obtaining Land Control Board consent was capable of full argument before the Court.

p. 2
02

Whether the intended appeal would be rendered nugatory if stay was not granted

Holding

The nugatory test failed: the respondents had been in possession since 2007 with no indication of intent to dispose of the property, and a transfer could be easily undone on a successful appeal.

Reasoning

The applicant's apprehension that the respondents might transfer the property to third parties was unsupported by evidence. Transfer to the respondents' names was not ipso facto evidence of an intention to on-sell, and the court declined to act on conjecture. Both limbs of rule 5(2)(b) must be satisfied, so the application was dismissed.

p. 2

Legal principles established

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  • An applicant for stay of execution under rule 5(2)(b) must satisfy both the arguability test and the nugatory test; it is not sufficient to satisfy only one.
  • An arguable appeal need not necessarily succeed nor raise a multiplicity of issues; even a single bona fide issue deserving full consideration will suffice.
  • The Court will not grant orders in interlocutory applications on the basis of conjecture and suppositions not grounded on evidence.

Court orders

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  1. 1.The application for stay of execution pending the hearing and determination of the intended appeal is dismissed
  2. 2.Costs of the application awarded to the respondents
On appeal from
Environment and Land Court of Kenya at Nakuru
ELCC No. 291 of 2013
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, "Samuel Mwehia Gitau v John Muturi Ng’ang’a & 2 others", Case Analysis (2021). Civil Application No. NYR 155 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/825/eng@2021-03-19

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