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Court of AppealDismissedCivil Application No. E229 of 2020· [2021] KECA 1052 (KLR)

Michael Karuku Gatura v Douglas Muindi Kangethe & 3 others

Court of Appeal
29 January 2021
1,052 words in judgment
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The bottom line

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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

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Executive summary

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This is a ruling of the Court of Appeal at Nairobi on a motion by Michael Karuku Gatura under Rule 5(2)(b) of the Court of Appeal Rules seeking stay of execution of the judgment of the Environment and Land Court (Onyango, J.) delivered on 18th May 2020 in ELC Case No. 605 of 2016 consolidated with ELC Case No. 758 of 2016. The trial court declared the respondents entitled to Land Parcel No. Dagoretti/Mutuini/1139 by adverse possession, nullified the applicant's subdivision of the parcel, ordered cancellation of new titles, directed transfer of specified portions to the respondents, and dismissed ELC Case No. 758 of 2016. Before the Court of Appeal, the applicant argued that the intended appeal was arguable - challenging the trial judge's reliance on questionable documents and her adverse possession finding - and that the appeal would be rendered nugatory because he would lose ownership of the property. The respondents countered that the appeal was not arguable and that adverse possession had been proved in earlier suits; that the trial court, in refusing stay, had restrained disposal of the subdivided parcels for 90 days; and that the parties all live on the land so execution was reversible. The Court (Ouko, P, Nambuye and Koome, JJ.A) restated the two-limb Rule 5(2)(b) test, holding that the applicant must satisfy both principles and that a single bona fide arguable ground suffices for arguability. It found the adverse possession issue arguable but held the nugatory limb failed, since the respondents live on the land, do not intend to dispose of it, and execution was reversible. The motion was dismissed with costs in the intended appeal. The decision below was not disturbed at this interlocutory stage.

Key legal issues

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01

Arguability of the intended appeal

Holding

The intended appeal is arguable, as the sufficiency of evidence to prove adverse possession is a bona fide arguable ground.

Reasoning

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.

p. 2
02

Whether the appeal would be rendered nugatory

Holding

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.

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 1.The applicant's motion under Rule 5(2)(b) for stay of execution pending appeal is dismissed
  2. 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

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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, "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.