Thuo & another v Kiarie & 5 others
The bottom line
#Kenya's Court of Appeal protected an elderly couple from eviction pending their land appeal, but only if they file the appeal record within 60 days.
What this practically means
#Executive summary
#Key legal issues
#Arguability of the intended appeal
The appeal was arguable: the grounds on adverse possession and ownership - whether the applicants were already in occupation when the church purchased the land - merit consideration by the full Court.
The applicants raised seven grounds including adverse possession and ownership. They alleged occupation predating the church's purchase; the respondents asserted the last surviving joint owner transferred the land to the church. The Court found these competing factual and legal contentions arguable points deserving address on appeal, without needing to decide them.
Nugatory aspect
Eviction of an 85-year-old, sickly occupant of over 40 years, with demolition already underway, would be irreversible if the appeal succeeded.
The Court noted it was not denied that respondents had begun demolishing the applicants' houses and that one applicant was a sickly octogenarian who had lived on the land over 40 years. Evicting such a person into the cold, with risks to life and health, was held irreparable and irreversible, satisfying the second limb of the Rule 5(2)(b) test.
Legal principles established
#- An applicant under Rule 5(2)(b) must demonstrate both an arguable appeal and that the appeal will be rendered nugatory absent stay.
- An arguable appeal need not have a multitude of arguable grounds nor need it be one that will necessarily succeed.
- On the nugatory limb, the applicant must show that what is sought to be stayed is reversible.
Court orders
#- 1.Orders restraining the respondents and anybody claiming under them from taking possession of the suit land or evicting the applicants pending the hearing and determination of the appeal
- 2.The record of appeal to be filed and served within 60 days from the date of the Ruling, failing which the said orders will stand vacated
- 3.Costs of the application to be in the appeal
- On appeal from
- Environment and Land Court (ELC) at Nairobi
- ELC Case No. 93 of 2015 (O.S)
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Thuo & another v Kiarie & 5 others", Case Analysis (2022). Civil Application E449 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/944/eng@2022-07-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.