Richard K. Busienei v Shelly J. Busienei & 1 other
The bottom line
#The Court of Appeal refused to stop execution of a land transfer because the appellant had already breached a court-ordered settlement and the transfer was already done.
What this practically means
#Executive summary
#Key legal issues
#Whether the intended appeal was arguable
The Court found the two proposed grounds of appeal not arguable, as the applicant had entered into an unchallenged consent order and defaulted on it, and the learned Judge merely allowed execution following that default.
The Court examined the two draft grounds of appeal and found them unarguable at face value. The applicant had voluntarily entered a consent adopted as a court order and failed to honour its terms, and that consent was not challenged. The Judge below simply allowed the 2nd respondent to execute because of the applicant's own default, leaving no arguable point for the appellate bench to interrogate.
Whether the intended appeal would be rendered nugatory absent stay
The nugatory test failed because the survey had been undertaken, a deed plan issued and the transfer executed by the Deputy Registrar, leaving nothing to stay.
The 2nd respondent demonstrated that execution had already been completed: the survey was done, a deed plan attached and the transfer of title executed by the Deputy Registrar pursuant to the court order. The relief sought had therefore been overtaken by events, so the appeal could not be rendered nugatory by refusal of stay.
Legal principles established
#- An applicant under Rule 5(2)(b) must demonstrate both that the appeal or intended appeal is arguable and that, absent stay or injunction, the success of the appeal will be rendered nugatory.
Court orders
#- 1.The notice of motion dated 18th May, 2020 seeking stay of execution is dismissed
- 2.Costs awarded to the 2nd respondent
- On appeal from
- Environment and Land Court of Kenya at Eldoret
- ELC No. 235 of 2014
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Richard K. Busienei v Shelly J. Busienei & 1 other", Case Analysis (2021). Civil Application No. 58 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/1020/eng@2021-02-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.