Michael Karuku Gatura v Douglas Muindi Kangethe & 3 others
The bottom line
#Kenya's Court of Appeal refused to halt a land judgment, holding that an arguable appeal alone is not enough—applicants must also show the appeal would become pointless without a stay.
What this practically means
#Executive summary
#Key legal issues
#Arguability of the intended appeal
The intended appeal is arguable, as the sufficiency of evidence to prove adverse possession is a bona fide arguable ground.
The court found that the applicant's challenge to the trial judge's reliance on questioned documents and her finding on adverse possession raised a genuinely arguable point, satisfying the first limb of the Rule 5(2)(b) test. However, arguability alone was insufficient without the nugatory limb.
Whether the appeal would be rendered nugatory
The appeal would not be rendered nugatory because the respondents live on the suit land, do not intend to dispose of it, and any subdivision and registration executed would be capable of being reversed if the appeal succeeded.
Beyond the temporary restraint on disposal, there was uncontroverted evidence that the respondents reside on the land and stated no intention to dispose of it. Any transfers could be reversed on a successful appeal, so the applicant failed the second limb and the motion had to fail.
Legal principles established
#- An application under Rule 5(2)(b) invokes the Court's original and discretionary jurisdiction; a party may apply to this Court irrespective of the outcome of a similar application below.
- An applicant under Rule 5(2)(b) must satisfy both limbs: an arguable appeal and that it will be rendered nugatory if stay is not granted; one bona fide arguable ground suffices for the first limb.
- The nugatory test asks whether what is sought to be stayed is reversible, or if not, whether damages will reasonably compensate the aggrieved party.
Court orders
#- 1.The applicant's motion under Rule 5(2)(b) for stay of execution pending appeal is dismissed
- 2.Costs of the application to be in the intended appeal
- On appeal from
- Environment and Land Court at Nairobi
- ELC Case No. 605 of 2016
- 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, "Michael Karuku Gatura v Douglas Muindi Kangethe & 3 others", Case Analysis (2021). Civil Application No. E229 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/1052/eng@2021-01-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.