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Case Brief · caselaw.co.ke
Court of AppealAllowedCivil Appeal (Application) 315 of 2019· [2022] KECA 1154 (KLR)

Kimani & 4 others v Sigona Jua Kali Association & 4 others

Court of Appeal
21 October 2022
1,441 words in judgment
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The bottom line

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Kenya's Court of Appeal paused a land judgment cancelling titles, because the appeal raised real issues and executing it would be impossible to undo.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Nairobi (Okwengu, Mohammed and ole Kantai, JJA) on a notice of motion dated August 9, 2019 brought under rule 5(2)(b) of the Court of Appeal Rules by five applicants seeking stay of execution of a judgment of the Environment and Land Court at Thika (Mbugua, J) delivered on May 2, 2019 in E.L.C. Cause No. 131 of 2017, pending the hearing of Civil Appeal No. 315 of 2019. The ELC judgment had ordered cancellation of all titles and subdivisions of the suit property, Sigona/934, and, as the applicants contended, entered judgment in favour of the Commissioner of Lands who was not a party to the suit. The 1st respondent opposed, arguing the transactions were the product of a corrupt scheme and that the Land Registrar had already begun cancelling the titles; the Attorney General urged the court not to make definitive findings. The court applied the settled twin principles under rule 5(2)(b): the appeal must be arguable and, if successful, rendered nugatory absent stay. It found a single bona fide arguable ground in the orders made in favour of a non-party, and held that without stay the property would revert to the Commissioner of Lands, destroying the substratum of the appeal. Both limbs being satisfied, the motion was allowed with costs abiding the outcome of the appeal. The decision is binding on the Environment and Land Court and subordinate courts as an application of the rule 5(2)(b) test; the main appeal remains to be heard.

Key legal issues

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01

Whether the appeal was arguable under rule 5(2)(b)

Holding

The appeal was arguable, inter alia, on the ground that the ELC judge gave orders in favour of the Commissioner of Lands who was not a party to the suit.

Reasoning

The court applied the settled test that an arguable appeal need not necessarily succeed but must not be frivolous, and that a single bona fide arguable ground suffices. It found the ground concerning orders made in favour of a non-party (the Commissioner of Lands) bona fide arguable, while expressly avoiding definitive findings that could embarrass the bench hearing the main appeal.

p. 3
02

Whether the appeal would be rendered nugatory absent stay

Holding

If stay was not granted, the suit property would revert to the Commissioner of Lands, the substratum of the appeal would be lost and the appeal rendered nugatory.

Reasoning

The court weighed the conflicting claims of both parties on their merits, noting that 'nugatory' bears its full meaning and that reversibility and compensability by damages are relevant. It concluded that cancellation of titles and reversion of the property to the Commissioner of Lands would be irreversible in practical terms, destroying the substratum of the appeal.

p. 3

Legal principles established

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  • An applicant under rule 5(2)(b) must satisfy both the arguability and nugatory limbs to the court's satisfaction.
  • An appeal is arguable if it raises a single bona fide arguable ground that is not frivolous.

Court orders

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  1. 1.Stay of execution of the judgment of the Environment and Land Court (Mbugua, J) delivered on May 2, 2019 pending the hearing and determination of Civil Appeal Number 315 of 2019, Nairobi
  2. 2.Costs to abide the outcome of the appeal
On appeal from
Environment and Land Court of Kenya at Thika
E.L.C. Cause No. 131 of 2017
Jurisdiction invoked
Rule 5(2)(b) 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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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Kimani & 4 others v Sigona Jua Kali Association & 4 others", Case Analysis (2022). Civil Appeal (Application) 315 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1154/eng@2022-10-21

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