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Court of AppealAllowedCivil Appeal (Application) E013 of 2021· [2022] KECA 498 (KLR)

Dim Properties Limited v Lamu Breeze Investments Limited & 6 others

Court of Appeal
1 April 2022
1,133 words in judgment
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The bottom line

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Kenya's Court of Appeal paused a land decree cancelling a buyer's title, confirming appeals need only be arguable—not certain winners—to get a stay.

What this practically means

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Executive summary

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Dim Properties Limited, the appellant, applied under Rule 5(2)(b) of the Court of Appeal Rules for stay of execution of a decree issued by the Environment and Land Court at Malindi (Olola, J.) on 22nd November 2019, which allowed the suit of Lamu Breeze Investments Limited and Equatorial Commercial Bank Ltd, cancelled the appellant's title LR No. 28462 and directed demolition of a perimeter wall. The appellant, claiming to be an innocent purchaser for value from the 3rd and 4th respondents in 2008, argued through counsel that the intended appeal was arguable and that execution before taxation of costs, with possible sale, demolition or fresh development, would render the appeal nugatory. The 1st and 2nd respondents opposed, contending the application was a delay tactic, that the appellant's stay application before the ELC had been dismissed, and that the appellant lacked clean hands. The 3rd, 4th and 5th respondents supported the application. Applying the twin Rule 5(2)(b) principles, the court found the appeal arguable, particularly on whether the ELC was right to reject the bona fide purchaser defence, and held that execution entailing cancellation of title and demolition would render the appeal nugatory if it succeeded. The court allowed the application in terms of prayer 2, staying execution of the decree pending the appeal, with costs of the application to abide the appeal's outcome. This is an interlocutory ruling of a single-judge-appeal panel; it does not disturb the decision below.

Key legal issues

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01

Whether the intended appeal is arguable

Holding

The appeal is arguable, including on whether the ELC was right to reject the appellant's bona fide purchaser plea.

Reasoning

The court reviewed the impugned judgment against the memorandum of appeal and found a live question on protection of a bona fide purchaser for value without notice. It reiterated that an arguable appeal need not necessarily succeed; it need only not be frivolous.

p. 3
02

Whether the appeal will be rendered nugatory if stay is denied

Holding

Yes; execution would cancel the appellant's title and require demolition of a perimeter wall, rendering the appeal nugatory if it succeeds.

Reasoning

The court noted that execution of the decree entails cancellation of the appellant's title and an order to demolish a perimeter wall. If the appeal later succeeded, those irreversible steps would have destroyed the subject matter, satisfying the nugatory limb.

p. 3

Legal principles established

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  • An arguable appeal under Rule 5(2)(b) need not be one that must necessarily succeed; it suffices that it is not frivolous.
  • Stay under Rule 5(2)(b) requires the twin tests of an arguable appeal and nugatory-ness to be satisfied.

Court orders

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  1. 1.Stay of execution of the decree in Malindi ELC Case No. 224 of 2014 pending the hearing and determination of the appeal, in terms of prayer 2 of the application dated 15th December 2021
  2. 2.Costs of the application to abide by the outcome of the appeal

Authorities

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Legislation

  • Court of Appeal RulesRule 5(2)(b)

Cases cited (2)

  • Stanley Kangethe Kinyanjui vs. Tony Ketter & 5 others
    [2013] eKLR

    Parameters for exercise of discretion under Rule 5(2)(b)

  • Justus Kyalo Musyoka vs John Kivungo
    [2019] eKLR

    Cited by 1st and 2nd respondents opposing stay

On appeal from
Environment and Land Court at Malindi
ELC Case No. 224 of 2014
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, "Dim Properties Limited v Lamu Breeze Investments Limited & 6 others", Case Analysis (2022). Civil Appeal (Application) E013 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/498/eng@2022-04-01

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