Gakibe v Ngumba & 3 others
The bottom line
#Kenya's Court of Appeal refused to protect a landowner's possession because winning on appeal later could still be fixed with money damages.
What this practically means
#Executive summary
#Key legal issues
#Arguability of the intended appeal
The intended appeal was arguable, particularly on whether a constructive trust existed in favour of the applicant.
The court considered the grounds in the motion and draft memorandum and found at least one bona fide arguable ground - whether a constructive trust existed in the suit property. It declined to make definitive findings lest it embarrass the bench hearing the main appeal, consistent with Stanley Kang'ethe Kinyanjui v Tony Ketter.
Nugatory aspect
The intended appeal would not be rendered nugatory because the applicant is not in possession and the 3rd respondent can compensate him if successful.
The court weighed the conflicting claims of both parties. It found the applicant not in possession of the suit property and noted the 3rd respondent's confirmation that it is an investment company able to compensate the applicant should the appeal succeed, citing James H. Archer v Inger Christine Archer.
Legal principles established
#- An applicant under Rule 5(2)(b) must satisfy both limbs - arguability of the appeal and that it will be rendered nugatory absent a stay or injunction - before relief can be granted.
- An arguable appeal need not necessarily succeed; it is one that is not frivolous and ought to be argued fully before the court.
- Whether an appeal will be rendered nugatory depends on whether what is sought to be stayed is reversible or whether damages will reasonably compensate the aggrieved party.
Court orders
#- 1.The notice of motion dated August 24, 2021 is dismissed with costs
- On appeal from
- Environment & Land Court at Nairobi
- ELC No. 281 of 2009
- Jurisdiction invoked
- Rules 5(2)(b) and 42 of the Court of Appeal Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Gakibe v Ngumba & 3 others", Case Analysis (2022). Civil Application E300 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/538/eng@2022-05-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.