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Case Brief · caselaw.co.ke
Court of AppealPartially AllowedCivil Appeal E158 of 2021· [2022] KECA 504 (KLR)

Bukamu & another v Nangila

Court of Appeal
28 April 2022
1,574 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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This is a ruling of the Court of Appeal at Kisumu (Kiage, Ngugi and Tuiyott, JJA) on an application under Rules 1(2), 5(2)(b) and 47 of the Court of Appeal Rules and Article 159(2)(d) of the Constitution for stay of execution of the judgment of the Kitale Environment and Land Court (Mwangi Njoroge, J) of 9 September 2021, which had ordered the applicants evicted from Kwanza/Kwanza/Tonyoto/190, awarded the respondent Kshs. 20,000 for trespass and costs. The ELC had earlier granted conditional stay requiring a deposit of Kshs. 500,000 within 45 days; the applicants did not meet that condition and came to the Court of Appeal. Applying the settled two-limb Rule 5(2)(b) test, the Court found the draft memorandum of appeal raised arguable issues on ownership of parcels 186 and 193 and errors in the Registry Index Map, and that eviction of applicants who had occupied the land with their families since 1986 and 1987 would render the appeal nugatory. The Court held a conditional stay appropriate but found the Kshs. 500,000 deposit too high. It granted stay pending appeal conditional on depositing Kshs. 100,000 in a joint interest-earning account within 30 days, failing which the stay lapses, and ordered each party to bear its own costs. The decision below was varied, not reversed.

Key legal issues

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01

Arguable appeal under Rule 5(2)(b)

Holding

The draft memorandum raised arguable issues, satisfying the first limb.

Reasoning

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.

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02

Nugatory limb

Holding

Eviction of applicants who had occupied the land with their families since 1986/1987 would render the appeal nugatory.

Reasoning

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.

p. 3
03

Terms of stay where the trial court has already granted conditional stay

Holding

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.

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 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. 2.Each party to bear its own costs of the application

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 159(2)(d)
  • Court of Appeal RulesRule 1(2)
  • Court of Appeal RulesRule 5(2)(b)
  • Court of Appeal RulesRule 47
  • Civil Procedure RulesOrder 42 Rule 6(1)

Cases cited (2)

  • Stanley Kangethe Kinyanjui vs. Tony Ketter & Others
    (2013) eKLR

    Two-limb test for stay under Rule 5(2)(b): arguable appeal and nugatory appeal.

  • Jennifer Akinyi Osodo v Boniface Okumu Osodo & 3 others
    [2021] eKLR

    Restatement of settled principles for exercise of discretion under Rule 5(2)(b).

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

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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, "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.