Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealPartially AllowedCivil Application E046 of 2021· [2022] KECA 898 (KLR)

Emmanuel v Mungai

Court of Appeal
13 May 2022
1,399 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

#

Kenya's Court of Appeal froze demolition of structures on disputed Kilifi land, confirming one arguable appeal point is enough for a stay.

What this practically means

#

Executive summary

#
This is a ruling of the Court of Appeal at Malindi (delivered at Mombasa) on a Notice of Motion dated 28th May 2021 by Cecilia Kadzo Emmanuel seeking stay of execution and/or an injunction pending appeal against the judgment of the Environment and Land Court at Malindi (Olola J) delivered on 29th October 2019, which dismissed her suit and granted orders in favour of Miriam Chea Mungai over LR No. 5054/328 in Kilifi. The application was brought under Rule 5(2)(b) of the Court of Appeal Rules, 2010, after the ELC dismissed her earlier stay application on 29th January 2021. Applying the settled twin principles - an arguable appeal and nugatory-ness - the Court found the grounds on the location of the land and adverse possession were not frivolous, holding that one arguable point suffices and the omission of a draft memorandum of appeal was curable. On the second limb, noting the trial court's order that the Applicant remove her structures from LR 5054/328 within 45 days, the Court found the prejudice may be irreparable if the structures were removed pending appeal. The application succeeded: the Court ordered preservation of the status quo as at the date of the ruling regarding the structures on LR No. 5054/328 pending the intended appeal, with costs of the motion to abide the outcome of the appeal. The decision binds the ELC and preserves the Applicant's structures pending determination of the appeal.

Key legal issues

#
01

Arguability of the intended appeal

Holding

The grounds on the location of the land over which title was issued and on adverse possession were not frivolous, satisfying the arguability threshold

Reasoning

The Court applied Somak Travels: one arguable point suffices and it need not be one that will succeed. The applicant's grievances on the ELC findings on title location and adverse possession were sufficiently set out, and whether they succeed is a matter for the appeal itself.

p. 3
02

Whether the appeal would be rendered nugatory

Holding

The prejudice to the Applicant may be irreparable if her structures on LR 5054/328 are removed pursuant to the trial court's 45-day order, so the nugatory limb was met

Reasoning

Both parties claimed occupation. The trial court had ordered the Applicant to remove her structures from LR 5054/328 within 45 days failing which removal at her cost. The Court found the prejudice if the structures were removed pending appeal may be irreparable, satisfying the second principle despite the Respondent holding title.

p. 3

Legal principles established

#
  • An applicant under Rule 5(2)(b) must satisfy the twin principles of an arguable appeal and that the appeal would be rendered nugatory absent stay
  • One arguable point suffices and it need not be a point that would succeed on appeal; omission to annex a draft memorandum of appeal is curable

Court orders

#
  1. 1.An order preserving the status quo obtaining as at the date of the ruling with regard to the structures on the property known as LR No. 5054/328, pending the hearing and determination of the Applicant's intended appeal
  2. 2.The costs of the Notice of Motion dated 28th May 2021 shall abide the outcome of the intended appeal

Authorities

#

Legislation

  • Court of Appeal Rules, 2010Rule 5(2)(b)
  • Court of Appeal Rules, 2010Rule 75

Cases cited (3)

  • Halai & Another vs Thornton & Turpin (1963) Ltd
    (1990) KLR 365

    That the court is properly seized of an application under Rule 5(2)(b) where a notice of appeal was lodged within 14 days

  • Stanley Kangethe Kinyanjui vs Tony Ketter & 5 others
    [2013] eKLR

    Restatement and amplification of the principles for grant of stay under Rule 5(2)(b)

  • Somak Travels Ltd vs Gladys Aganyo
    [2016] eKLR

    One arguable point suffices; it need not succeed on appeal; omission of a draft memorandum is curable

On appeal from
Environment and Land Court at Malindi
Malindi ELC No. 140 of 2013
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules, 2010

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Emmanuel v Mungai", Case Analysis (2022). Civil Application E046 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/898/eng@2022-05-13

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