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Court of AppealPartially AllowedCivil Application E044 of 2022· [2022] KECA 1205 (KLR)

Mohamud v Osman & 7 others

Court of Appeal
4 November 2022
KMK M'INOTISKS OLE KANTAIFTF TUIYOTT
1,838 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Court of Appeal paused an eviction order, but only if the applicant deposits Ksh.150,000 monthly and files the appeal within 21 days.

What this practically means

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Executive summary

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This is a single-judgment ruling of a three-judge bench of the Court of Appeal (M'inoti, ole Kantai and Tuiyott, JJA) on a motion under rule 5(2)(b) of the Court of Appeal Rules seeking stay of execution of a judgment of the Environment and Land Court at Kisumu (Ombwayo, J.) dated 11 March 2022 in ELC Case No. 73 of 2016, which ordered the applicant and his co-plaintiffs to vacate L.R. No. Kisumu Municipality/Block 5/75 and 276 within 60 days and awarded the 3rd and 5th respondents possession, mesne profits and costs on a counter-claim. The applicant argued the intended appeal was arguable, that he and co-plaintiffs had paid the purchase price, occupied the land and made heavy investments, and that execution would render the appeal nugatory. The 1st and 2nd respondents supported the application; the 3rd and 5th to 8th respondents opposed, proposing conditions including an escrow account for rents and security for the mesne profits claim. Applying the settled rule 5(2)(b) principles - arguability and nugatory value - the court found a single arguable point sufficed, held the premises might be demolished if the appeal succeeded, and allowed the motion on conditions: a monthly deposit of Ksh.150,000 into a joint counsel account, filing of the appeal within 21 days, fast-tracked hearing, and costs of the motion in the appeal. The decision below was not disturbed; the ruling preserves the status quo pending the intended appeal.

Key legal issues

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01

Arguability of the intended appeal

Holding

The 13 draft grounds, including that dismissal was against the evidence and that the defendants acted fraudulently by receiving purchase price from both sides, were arguable.

Reasoning

The court examined the draft Memorandum of Appeal and identified grounds challenging the dismissal of the suit, the counter-claim award, and alleged double receipt of purchase price. It held these were not idle grounds, applying the single-arguable-point standard.

p. 3
02

Nugatory value absent stay

Holding

The premises may be demolished and be beyond the applicant's reach if the appeal succeeds, satisfying the nugatory limb.

Reasoning

The court accepted that eviction of tenants and possible destruction of premises erected on the suit lands would render the appeal nugatory, constituting special circumstances warranting stay.

03

Imposition of conditions on stay

Holding

Stay granted subject to monthly deposit of Ksh.150,000 into a joint account of counsel, filing of the appeal within 21 days, and fast-tracked hearing.

Reasoning

Because of rival contestations over rental income, purchase price and mesne profits, the court conditioned the stay on a monthly deposit to preserve the position of both sides pending the appeal.

p. 4

Legal principles established

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  • An applicant under rule 5(2)(b) must demonstrate that the appeal or intended appeal is arguable and that it would be rendered nugatory absent stay.
  • An applicant need only set out a single arguable point meriting consideration and need not demonstrate a multiplicity of arguable grounds.
  • Stay of execution may be granted where there are particular or special circumstances in a case warranting the grant.

Court orders

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  1. 1.Stay of execution of the decree/order/judgment in ELC Case No. 73 of 2016 granted pending the intended appeal, on conditions
  2. 2.Ksh.150,000 per month be deposited by the applicant in an account in the joint names of counsel for the applicant and the 3rd, 5th, 6th, 7th and 8th respondents
  3. 3.Appeal (if not filed) be filed within 21 days
  4. 4.The appeal be fast-tracked for speedy hearing and disposal
  5. 5.Costs of the Motion to be in the appeal
On appeal from
Environment and Land Court of Kenya at Kisumu
ELC Case No. 73 of 2016
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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Cite this brief

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Cite this brief

Caselaw, "Mohamud v Osman & 7 others", Case Analysis (2022). Civil Application E044 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1205/eng@2022-11-04

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