Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealAllowedCivil Application E023 of 2022· [2022] KECA 1203 (KLR)

Swaleh & another v Aziz

Court of Appeal
4 November 2022
AMA.K. MurgorPNP. NyamweyaJLJ. Lesiit
2,154 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

#

Kenya's Court of Appeal halted eviction and demolition of a Mombasa property, confirming that even one arguable appeal point can justify a stay of execution.

What this practically means

#

Executive summary

#
The applicants, Fatma Swaleh and Abdulhakim Mazrui, sought stay of execution of a judgment and decree of the Senior Principal Magistrate in Mombasa CMCC ELC Case No. 1117 of 2017, by which the respondent obtained injunction, demolition and eviction orders over Plot No. 842/II/MN. The respondent had sued the second applicant and a co-defendant, claiming beneficial ownership inherited from his father, and obtained judgment after the trial court found the applicant had altered and encroached without consent. The applicants' earlier stay application before the Environment and Land Court (Matheka, J) was dismissed on 8th December 2021, the ELC finding the appeal neither arguable nor nugatory. The applicants then moved the Court of Appeal under Rule 5(2)(b) of the Court of Appeal Rules, Sections 3A and 3B of the Appellate Jurisdiction Act and Article 159 of the Constitution. Applying the settled two-limb test - arguability and nugatory aspect - as summarized in Stanley Kangethe Kinyanjui v Tony Ketter, the court (Murgor, Nyamweya and Lesiit, JJA) found the intended appeal raised triable issues, notably whether the ELC made final determinations of substantive issues such as title and capacity to sue at an interlocutory stage, and whether the concept of houses without land survives under current land law. On the second limb, the applicants demonstrated imminent eviction and demolition that would destroy the substratum of the appeal. The application dated 22nd March 2022 was allowed with costs in the intended appeal. The decision binds subordinate courts and the ELC on the applicable Rule 5(2)(b) principles.

Key legal issues

#
01

Arguability of the intended appeal

Holding

The intended appeal was arguable: whether the ELC delved into the appeal and made final determinations of substantive issues, including title and capacity to sue, at an interlocutory stage, and whether the concept of houses without land is recognized in law.

Reasoning

The court considered the annexed Memorandum of Appeal and found triable issues. It identified as arguable whether the ELC made final determinations of substantive issues at an interlocutory stage, including the respondent's title and capacity to sue, and whether the concept of houses without land is recognized in current land law.

p. 3
02

Whether the appeal would be rendered nugatory

Holding

Stay was warranted because the applicants faced eviction and demolition of their house, which would destroy the substratum of the appeal.

Reasoning

The court held that each nugatory case depends on its own facts. Here the applicants showed imminent danger of eviction and demolition of their house; if the appeal succeeded without stay, the substratum of the appeal would be lost, rendering it nugatory. Orders preserving the substratum pending appeal were therefore deserved.

p. 4

Legal principles established

#
  • An applicant under Rule 5(2)(b) must first satisfy the court that the intended appeal is arguable, meaning not frivolous or idle, and need not show it will necessarily succeed.
  • The applicant must further demonstrate that unless stay is granted, the appeal or intended appeal would be rendered nugatory.
  • A single arguable point suffices to satisfy the first principle under Rule 5(2)(b).

Court orders

#
  1. 1.Stay of execution of the judgment and decree of the Chief Magistrate's Court delivered on 1st July 2021 in Mombasa CMCC ELC Case No. 1117 of 2017 pending the hearing and determination of the intended appeal
  2. 2.Costs in the intended appeal

Authorities

#

Legislation

  • Court of Appeal RulesRule 5(2)(b)
  • Court of Appeal RulesRule 75
  • Appellate Jurisdiction ActSection 3A
  • Appellate Jurisdiction ActSection 3B
  • Constitution of KenyaArticle 159

Cases cited (4)

  • Stanley Kangethe Kinyanjui v Tony Ketter & Others
    [2013] eKLR

    Summary of the two principles for granting stay under Rule 5(2)(b): arguability and nugatory aspect.

  • Multimedia University & Another v Professor Gitile N. Naituli
    [2014] eKLR

    Relied on by applicants' counsel for satisfaction of the Rule 5(2)(b) principles.

  • Somak Travels Ltd v Gladys Aganyo
    [2016] eKLR

    One arguable point suffices; omission of a draft memorandum of appeal is not fatal if grievances are set out.

  • Caneland Ltd. Malkit Singhpandhal & Another v Delphis Bank Ltd
    [2000] eKLR

    Relied on by respondent's counsel for the onus of showing a litigant is a man of straw; distinguished as inapplicable.

On appeal from
Environment and Land Court
ELC Appeal No. 43 of 2021
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules, Sections 3A and 3B of the Appellate Jurisdiction Act and Article 159 of the Constitution

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Swaleh & another v Aziz", Case Analysis (2022). Civil Application E023 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1203/eng@2022-11-04

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