Mugo v Gitau & another
The bottom line
#Kenya's Court of Appeal refused to protect a landowner's property pending appeal because any harm could be paid for with money.
What this practically means
#Executive summary
#Key legal issues
#Arguability of the intended appeal
The applicant raised at least one arguable issue - whether his title could be cancelled without a hearing
The court perused the grounds of appeal and found germane issues on ownership and possession, namely whether the learned judge was justified in cancelling the title without giving the applicant a chance to be heard. An arguable point need not succeed, only merit consideration.
Whether the appeal would be rendered nugatory
No - the feared harm is compensable in damages, so the second limb failed
The court held that the felling of trees and demolition of a temporary wooden structure are items whose value can be assessed and compensated in damages. Since the feared actions are reversible by an award of damages, the applicant failed to demonstrate the nugatory aspect.
Relevance of the applicant's indolence
Indolence in prosecuting the appeal is not one of the two key considerations under rule 5(2)(b)
The court agreed with the 1st respondent that the applicant had been indolent since filing notice of appeal in March 2012, but hastened to add that delay in prosecuting the appeal is not one of the two key considerations for relief under rule 5(2)(b).
Legal principles established
#- Both limbs of the rule 5(2)(b) test - arguability and nugatory-ness - must be satisfied before relief can be granted
- An arguable appeal is one that merits consideration, not one that must necessarily succeed
- An appeal is rendered nugatory only if the harm feared is irreversible or not reasonably compensable in damages
Court orders
#- 1.The notice of motion dated November 27, 2015 is dismissed
- 2.Costs of the application awarded to the 1st respondent
- On appeal from
- High Court of Kenya at Nairobi
- HCCC 50 of 1980
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules 2010, derived from article 164(3) of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mugo v Gitau & another", Case Analysis (2022). Civil Application 340 (UR 250) of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1224/eng@2022-11-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.