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Court of AppealDismissedCivil Application E033 of 2022· [2022] KECA 698 (KLR)

Momanyi v Osano

Court of Appeal
8 July 2022
1,431 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed that filing an appeal does not stop a lawful court-ordered eviction, and refused to restore an evicted occupant.

What this practically means

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Executive summary

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The applicant, evicted from Eldoret Municipality/block 5/733 on 2nd March 2022, moved the Court of Appeal under Rule 5(2)(b) for a restorative injunction and restoration order pending an intended appeal against the ruling of Obaga J. of 25th November 2021, which dismissed his stay application and allowed the OCS to oversee his eviction. The eviction followed a judgment of Odeny J. of 2nd February 2021 granting the respondent a permanent injunction and vacant possession. The applicant argued the eviction was unprocedural because the respondent had been served with a notice of appeal and a hearing notice for his pending stay application, and that he held a lien on the property by bequest. The respondent countered that the eviction was lawful, that restoration requires proof of ownership, and that the applicant, a former farm hand, had none. The Court restated the settled Rule 5(2)(b) principles: an applicant must show an arguable appeal and that it would be rendered nugatory. It held the appeal was not arguable because the eviction was carried out under two valid court orders and was lawful and procedural; filing an appeal or a hearing notice does not operate as a stay. The Court followed its own decision in New Ocean Transport Limited, holding that no restorative injunction lies after a lawful eviction. The application was dismissed with costs.

Key legal issues

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01

Arguability of the intended appeal

Holding

The appeal was not arguable; the eviction was effected under two valid court orders and was lawful and procedural.

Reasoning

The applicant was evicted pursuant to orders of Odeny J. granting the respondent a permanent injunction and vacant possession, and of Obaga J. directing the OCS to oversee the eviction. Service of a notice of appeal and a hearing notice for a stay application did not operate as a stay. The applicant therefore failed the first limb of the Rule 5(2)(b) test.

p. 2
02

Availability of restorative injunction after lawful eviction

Holding

No restorative injunction lies where eviction was carried out lawfully pursuant to a court order.

Reasoning

The Court adopted its own holding in New Ocean Transport Limited, where applicants evicted after expiry of a temporary stay could not obtain a restorative injunction. Service of a letter indicating an intention to seek stay does not amount to a stay order known in law, and a respondent cannot be faulted for proceeding with lawful execution.

p. 3
03

Nugatory aspect and ownership of the suit property

Holding

The applicant failed to establish ownership of the suit property, undermining any nugatory argument.

Reasoning

Having failed on arguability, the nugatory limb did not require consideration. In any event, the applicant, described as a former farm hand accommodated on the property, did not establish ownership capable of sustaining an argument that the appeal would be rendered nugatory.

p. 3

Legal principles established

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  • Institution of an appeal does not operate as a stay of execution; a hearing notice for a stay application is likewise not a stay.
  • A restorative injunction cannot be granted where the applicant was evicted pursuant to a valid court order through legal process.
  • An applicant under Rule 5(2)(b) must satisfy both the arguability and nugatory limbs; failure on one renders consideration of the other unnecessary.

Court orders

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  1. 1.The application dated 3rd March 2022 is dismissed with costs to the respondent

Authorities

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Legislation

  • Court of Appeal RulesRule 5(2)(b)
  • Court of Appeal RulesRule 5(2)

Cases cited (3)

  • New Ocean Transport Limited & Another Vs Anwar Mohamed Bayusuf Limited
    [2014] eKLR

    Restorative injunction unavailable where eviction was effected pursuant to a court order through legal process; filing a stay application is not a stay.

  • Stanley Kangethe Kinyanjui Vs. Tony Ketter & 5 Others
    [2013] Eklr

    Definition of an arguable appeal under Rule 5(2)(b).

  • Kieni Plains Co. Ltd & 2 Others Vs. Ecobank Kenya Ltd
    [2018] eKLR

    Rule 5(2)(b) principles on arguability and nugatory aspects.

On appeal from
Environment and Land Court of Kenya at Eldoret
Eldoret ELC Case No. 6 of 2019
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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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Momanyi v Osano", Case Analysis (2022). Civil Application E033 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/698/eng@2022-07-08

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