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Court of AppealDismissedCivil Application E072 of 2022· [2022] KECA 745 (KLR)

Mukunya v Karanja & 4 others

Court of Appeal
27 May 2022
1,352 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to pause land dispute proceedings, confirming that stay applications fail unless both arguability and nugatory harm are proven.

What this practically means

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Executive summary

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The applicant, Benson Mugo Mukunya, moved the Court of Appeal under Rules 5(2)(b) and 42 of the Court of Appeal Rules seeking a stay of proceedings in ELC Case No. 1289 of 2014 pending appeal. The appeal targeted a ruling of the Environment and Land Court at Nairobi (Mbugua, J.) which found the applicant and the 2nd to 5th respondents in contempt of court, ordered them to show cause why they should not be punished, nullified the sub-division of the suit property and barred transfers of three acres excised from it. The orders flowed from a consent order of 4th December 2018, adopted on 20th May 2019, under which the applicant and the 2nd and 3rd respondents were to transfer three acres to the 1st respondent; the applicant instead sub-divided and transferred the land to Thika Credit Traders Limited. The 1st respondent opposed, arguing the application was filed out of time, the appeal was premature as no punishment had been meted out, and the appeal was not arguable. Applying the settled two-limb test from Chris Munga Bichage, the court held that the single ground raised - non-ownership of the suit property and inability to comply - could be canvassed at the notice to show cause hearing, and that since the consent order had not been reviewed or set aside, the appeal was not arguable. The first limb failing, the court did not consider the nugatory limb and dismissed the application with costs to the 1st respondent.

Key legal issues

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01

Whether the intended appeal was arguable

Holding

The single ground raised - that the appellant never owned the suit property and could not comply with the orders - did not render the appeal arguable, as those issues could be canvassed at the notice to show cause hearing and the consent order remained in force.

Reasoning

The court noted an applicant need only show one arguable ground, and an arguable ground need not succeed. Nonetheless, the sole ground concerned ownership and difficulty of compliance, matters addressable before the trial court at the notice to show cause. The proceedings flowed from a consent order freely entered into and never reviewed or set aside, so the court doubted the appeal was arguable.

p. 3
02

Whether the nugatory limb needed consideration

Holding

Having found the arguability limb not demonstrated, the court found it unnecessary to address the nugatory limb, since both limbs must be satisfied.

Reasoning

Because the Rule 5(2)(b) threshold requires both limbs to be demonstrated, failure on the first limb is dispositive. The court expressly declined to consider whether the appeal would be rendered nugatory, as the applicant had already failed the arguability test.

p. 3

Legal principles established

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  • An applicant under Rule 5(2)(b) must demonstrate both that the appeal is arguable and that it would be rendered nugatory if the order is not granted; demonstrating only one limb is insufficient.

Court orders

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  1. 1.The application is dismissed with costs to the 1st respondent

Authorities

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Legislation

  • Court of Appeal RulesRule 5(2)(b)
  • Court of Appeal RulesRule 42

Cases cited (3)

  • Ismael Kagunji Thande Vs. Finance Kenya Ltd
    Civil Application No. Nai 107 of 2016

    That both limbs of arguability and nugatory aspect must be proved to obtain stay of proceedings

  • Stanley Kangethe Kinyanjui Vs. Tony Keter & Others
    [2013] eKLR

    That the applicant had not made out a case with even the remotest chance of success

  • Chris Munga Bichage Vs. Richard Nyagaka Tongi & 2 Others
    [2013] eKLR

    Restatement of the settled law on stay of execution, stay of proceedings or injunction under Rule 5(2)(b)

On appeal from
Environment and Land Court at Nairobi
ELC No. 1289 of 2014
Jurisdiction invoked
Rules 5(2)(b) and 42 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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Cite this brief

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Cite this brief

Caselaw, "Mukunya v Karanja & 4 others", Case Analysis (2022). Civil Application E072 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/745/eng@2022-05-27

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