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Court of AppealPartially AllowedCivil Application No. 99 of 2016· [2021] KECA 827 (KLR)

Mathenge Njeru v Joseph Muriithi Njiru

Court of Appeal
19 March 2021
1,452 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal paused changes to a family land dispute by ordering both brothers to keep the property exactly as it is until the appeal is decided.

What this practically means

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Executive summary

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This is a single-judge-application ruling of a three-judge bench of the Court of Appeal at Nyeri on a notice of motion under section 3A and 3B of the Appellate Jurisdiction Act and Rule 5(2)(b) of the Court of Appeal Rules, 2010, seeking stay of execution of a judgment of the Environment and Land Court at Nyeri (L.N. Waithaka, J.) delivered on 15 February 2016 in ELC No. 584 of 2014. The underlying dispute concerns Mwerua/Mukure/60, which the respondent claimed his elder brother, the applicant, holds in trust for them equally; after an earlier judgment of 27 October 2015 favouring the applicant, the trial judge delivered a second judgment on 15 February 2016 holding that the applicant holds half the suit property in trust for the respondent. The applicant faulted the second judgment on the ground that the trial court had become functus officio after the first judgment. Applying the settled twin principles from Ismael Kagunji Thande vs. Housing Finance Kenya Ltd - arguability and nugatory-ness - the court found the functus officio point arguable, invoking Ahmed Musa Ismael vs. Kumba Ole Ntamorua to hold that a single arguable point suffices and need not succeed. On the nugatory limb, the court accepted the applicant's concern that the respondent might interfere with the suit property, the parties being brothers in occupation. The court allowed the motion, ordered maintenance of the status quo over the suit property pending the intended appeal, and made no order as to costs. The respondent's objections that the application was overtaken by events by a consent of 9 March 2017 and by prior dismissed applications were not ultimately determinative of the outcome.

Key legal issues

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01

Whether the intended appeal is arguable

Holding

The court found the assertion that the learned Judge issued two contradictory judgments after becoming functus officio to be an arguable issue warranting argument in the intended appeal.

Reasoning

The applicant raised, in a draft memorandum of appeal, the contention that the trial judge delivered a second judgment after the first, when the court was functus officio - described as an enduring principle preventing the re-opening of an issue before a court that rendered a final decision. The court found this disturbing and arguable, not frivolous, and held that one arguable issue is sufficient.

p. 2
02

Whether the appeal would be rendered nugatory without a stay

Holding

The applicant's concern that the respondent, his brother and co-occupant of the suit property, might interfere with it was a genuine concern; both limbs being satisfied, a status quo order was granted.

Reasoning

The applicant argued the respondent might transfer or interfere with the suit property. The court regarded this as possibly a genuine concern given the parties are brothers in occupation of the property. Having satisfied both the arguability and nugatory-ness limbs, the court ordered maintenance of the status quo rather than an outright stay of execution.

p. 2

Legal principles established

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  • For an applicant to succeed on a Rule 5(2)(b) application, he must show both that the appeal or intended appeal is arguable and that the success of the appeal would be rendered nugatory without the order sought.
  • A single arguable point suffices for a Rule 5(2)(b) application, and the point need not be one that must ultimately succeed.

Court orders

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  1. 1.That the status quo be maintained over Mwerua/Mukure/60 pending the hearing and determination of the intended appeal
  2. 2.No order as to costs
On appeal from
Environment and Land Court at Nyeri
ELC No. 584 of 2014
Jurisdiction invoked
Section 3A & 3B of the Appellate Jurisdiction Act (Chapter 9, Laws of Kenya) and 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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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Mathenge Njeru v Joseph Muriithi Njiru", Case Analysis (2021). Civil Application No. 99 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/827/eng@2021-03-19

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