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Court of AppealDismissedCivil Application E009 of 2022· [2022] KECA 1217 (KLR)

Ndegwa Ngundi Chimumu & 1,183 Others v Lalo Lugwe Lalo & 227 Others & 8 Others

Court of Appeal
4 November 2022
1,043 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal refused to stay land title correction orders because the applicants never filed a notice of appeal against those specific orders.

What this practically means

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Executive summary

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The applicants, Ndegwa Ngundi Chimumu and 1,183 others, applied under Rule 5(2)(b) of the Court of Appeal Rules for a stay of execution of consent orders given on 21 July 2021 and issued on 23 July 2021 by the Environment and Land Court at Mombasa in Constitutional Petition No. 46 of 2019. Under those consent orders, titles issued to the 1st respondent's members in the Maji ya Chumvi Adjudication Section, Kwale County, were to be surrendered for correction of their dates of issue. The applicants, whose joinder application had not been determined when the consent was entered, failed before the ELC (Matheka, J.) to set aside the consent orders, the court holding they lacked locus standi and that their remedy was a fresh suit. They filed a notice of appeal against that ruling and sought a stay of the earlier consent orders pending appeal. The 1st respondent raised a preliminary objection that a notice of appeal against the January 2022 ruling could not support a stay of the July 2021 orders, against which no notice of appeal had been filed. The Court of Appeal upheld the objection, holding that the notice of appeal is the foundation of jurisdiction under Rule 5(2)(b) and that without a notice of appeal against the orders sought to be stayed the court was bereft of jurisdiction. In the alternative, it found the intended appeal arguable but held the applicants had not shown the appeal would be rendered nugatory, since they could commence their own action. The application was dismissed with costs to the 1st respondent.

Key legal issues

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01

Jurisdiction under Rule 5(2)(b) in the absence of a matching notice of appeal

Holding

The court upheld the preliminary objection and held it had no jurisdiction to stay the July 2021 consent orders because the only notice of appeal filed related to the January 2022 ruling dismissing the applicants' application to set aside those orders.

Reasoning

Relying on Nguruman Limited v Shampole Group Ranch and Equity Bank Limited v West Link Mbo Limited, the court held that the notice of appeal is the foundation of jurisdiction under Rule 5(2)(b). Since no notice of appeal was filed against the consent orders sought to be stayed, the court was bereft of jurisdiction, and the application failed on that threshold ground.

p. 3
02

Whether the intended appeal is arguable and would be rendered nugatory

Holding

Although it may be arguable that a non-party may challenge consent orders, the applicants failed to demonstrate that the appeal would be rendered nugatory without a stay.

Reasoning

Applying the Stanley Kangethe Kinyanjui principles, the court accepted arguability in the applicants' favour but found no nugatory-ness: it was not clear why the applicants had to ride on the 1st respondent's action rather than commencing their own action, as the ELC judge had suggested. The second limb of the Rule 5(2)(b) test therefore failed.

p. 3

Legal principles established

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  • It is the notice of appeal that is the basis of the court's jurisdiction under Rule 5(2)(b); a notice of appeal against one ruling cannot support a stay of different, earlier orders.
  • A notice of appeal relating to a ruling cannot be the basis for seeking stay of execution of earlier orders with respect to which no notice of appeal has been filed.

Court orders

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  1. 1.The application dated February 11, 2022 is dismissed
  2. 2.Costs of the application to the 1st respondent

Authorities

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Legislation

  • Court of Appeal RulesRule 5(2)(b)

Cases cited (3)

  • Nguruman Limited v Shampole Group Ranch & another
    [2014] eKLR

    A notice of appeal relating to a ruling cannot found a stay of earlier orders against which no notice of appeal was filed.

  • Equity Bank Limited v West Link Mbo Limited
    [2013] eKLR

    The notice of appeal is the basis of the court's jurisdiction under Rule 5(2)(b).

  • Stanley Kangethe Kinyanjui v Tonny Keter and 5 others
    [2013] eKLR

    Test for stay under Rule 5(2)(b): arguability and nugatory-ness; an arguable appeal need not necessarily succeed.

On appeal from
Environment and Land Court at Mombasa
Constitutional Petition No. 46 of 2019
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, "Ndegwa Ngundi Chimumu & 1,183 Others v Lalo Lugwe Lalo & 227 Others & 8 Others", Case Analysis (2022). Civil Application E009 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1217/eng@2022-11-04

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