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Court of AppealDismissedCivil Application E022 of 2022· [2022] KECA 1094 (KLR)

Boit v Ouko & another (Suing as the administrators of the Estate of the Late Jason Atinda Ouko)

Court of Appeal
7 October 2022
2,038 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to pause a decade-old land case, ruling the appeal had no arguable grounds and further delay would unfairly harm the other side.

What this practically means

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Executive summary

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Solomon Boit, the defendant in Milimani ELC Civil Suit No. 483 of 2011, sought stay of proceedings in the ELC pending an intended appeal against a ruling of Mogeni, J dated 14th October 2021 dismissing his application to amend his defence and counterclaim to plead adverse possession and introduce a new party. The Judge had held that the amendment, sought ten years into the suit and on the eve of hearing, altered the character of the defence from ownership by purchase to adverse possession and would occasion injustice, amounting to a fishing expedition. Boit applied to the Court of Appeal under Rule 5(2)(b), invoking Article 50 of the Constitution and seeking to arrest the ELC judgment under Rules 1(2) and 31 of the Court of Appeal Rules. The respondents opposed, characterising the application as a decade-long delaying tactic. The Court applied the twin Rule 5(2)(b) tests as restated in Stanley Kangethe Kinyanjui v Tony Ketter. On arguability, it found that the grounds in the draft memorandum - essentially attacks on the Judge's exercise of discretion - were not arguable. On nugatory-ness, applying Reliance Bank v Norlake, it held the application had been overtaken by events since the ELC suit had been heard and judgment scheduled for 13th October 2022, and that no damages would compensate the respondents for a further decade of delay. The Court declined to arrest the ELC judgment, dismissed the application with costs to the respondents, and thereby left the ELC ruling undisturbed.

Key legal issues

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01

Arguability of the intended appeal against refusal of amendment to plead an adverse-possession counterclaim

Holding

The intended appeal was not arguable; the ELC judge properly exercised her discretion in refusing the late amendment

Reasoning

The Court noted the issues raised in the draft memorandum were addressed in the ruling below and that the applicant failed to show any arguable point on how the Judge exercised her discretion. A single arguable ground would have sufficed, but none of the grounds was arguable.

p. 4
02

Whether the appeal would be rendered nugatory without a stay

Holding

The nugatory test failed: the application was overtaken by events and delay would not be compensable by the applicant

Reasoning

The ELC suit had already been heard and judgment scheduled, so stay of proceedings was moot. Further, this Court cannot arrest the ELC judgment absent arguable grounds, and no damages would reasonably compensate the respondents for another decade of delay.

p. 4

Legal principles established

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  • An applicant for stay of proceedings under Rule 5(2)(b) must satisfy the twin requirements that the intended appeal is arguable and that it will be rendered nugatory if stay is not granted
  • A single bona fide arguable ground suffices for the arguability threshold; an arguable appeal need not necessarily succeed
  • Nugatory-ness depends on whether what is to be stayed is reversible or, if not, whether damages will reasonably compensate the aggrieved party

Court orders

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  1. 1.The application for stay of proceedings dated January 19, 2022 is dismissed
  2. 2.Costs of the application awarded to the respondents
On appeal from
Environment and Land Court at Nairobi
ELC. Civil Suit No. 483 of 2011
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules (stay of proceedings pending intended appeal)

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, "Boit v Ouko & another (Suing as the administrators of the Estate of the Late Jason Atinda Ouko)", Case Analysis (2022). Civil Application E022 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1094/eng@2022-10-07

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