Momanyi v Osano
The bottom line
#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
#Executive summary
#Key legal issues
#Arguability of the intended appeal
The appeal was not arguable; the eviction was effected under two valid court orders and was lawful and procedural.
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.
Availability of restorative injunction after lawful eviction
No restorative injunction lies where eviction was carried out lawfully pursuant to a court order.
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.
Nugatory aspect and ownership of the suit property
The applicant failed to establish ownership of the suit property, undermining any nugatory argument.
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.
Legal principles established
#- 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
#- 1.The application dated 3rd March 2022 is dismissed with costs to the respondent
- 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
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Samson Kirimi Kibundu v Elias Mutura M'mukira[2023] KEELC 17078 (KLR)26 Apr 2023applied
Cite this brief
#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.