Bukamu & another v Nangila
The bottom line
#The Court of Appeal paused an eviction but only after the applicants agreed to deposit Kshs. 100,000, showing courts will soften—but not remove—stay conditions.
What this practically means
#Executive summary
#Key legal issues
#Arguable appeal under Rule 5(2)(b)
The draft memorandum raised arguable issues, satisfying the first limb.
The Court considered the undated five-ground memorandum alleging errors on ownership of parcels 186 and 193, errors in the Registry Index Map, and wrongful finding of encroachment. It held these grounds, if established on hearing, could show the trial court erred, so the first limb was met without deciding the merits.
Nugatory limb
Eviction of applicants who had occupied the land with their families since 1986/1987 would render the appeal nugatory.
The applicants had lived on the suit land for over thirty years with their families. The Court reasoned that if they were evicted before the hearing of an appeal it had found arguable, the appeal would be rendered nugatory, satisfying the second limb of the Rule 5(2)(b) test.
Terms of stay where the trial court has already granted conditional stay
A conditional stay was appropriate but the Kshs. 500,000 deposit ordered by the ELC was too high; reduced to Kshs. 100,000 payable within 30 days.
The Court acknowledged the trial court's discretion under Order 42 Rule 6(1) but asserted its own power to make just orders on an application to it. It agreed a conditional stay was appropriate, found the amount punitive in the circumstances, and substituted a lower deposit with a 30-day deadline, failing which the stay lapses.
Legal principles established
#- An applicant under Rule 5(2)(b) must satisfy both the arguable appeal limb and the nugatory limb.
- A single bona fide arguable ground suffices for the arguable appeal limb; the appeal need not necessarily succeed.
- The Court of Appeal may, on an application to it, vary conditions of stay imposed by the trial court and make such order as may seem just.
Court orders
#- 1.Stay of execution of the Kitale ELC judgment pending appeal granted conditional upon the applicants depositing Kshs. 100,000 in a joint interest-earning bank account in the names of the respective Advocates for the parties within thirty (30) days, failing which the stay orders shall lapse
- 2.Each party to bear its own costs of the application
- On appeal from
- High Court of Kenya at Kitale (Environment & Land Court)
- Kitale Environment & Land Case No. 49 of 2016
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules and Article 159(2)(d) of the Constitution of Kenya, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Bukamu & another v Nangila", Case Analysis (2022). Civil Appeal E158 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/504/eng@2022-04-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.