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Court of AppealAllowedCivil Application E034 of 2022· [2022] KECA 1236 (KLR)

Kigen & another (Suing as legal representatives of the Estate of the Late Zakayo Sawe Arap Ngasura) v China Hanan International Group Limited & 3 others

Court of Appeal
4 November 2022
1,155 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 paused a land judgment because the foreign company involved might leave the country, making any later win meaningless.

What this practically means

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Executive summary

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The applicants, administrators of the estate of the late Zakayo Sawe Arap Ngasura, moved the Court of Appeal at Eldoret for stay of execution of the judgment of the Environment and Land Court (Odenyo/Okenyo, J.) dated 10 December 2021 in ELC Case No. 351 of 2015, pending an intended appeal. The ELC had dismissed their suit summarily, holding that a limited grant of letters of administration gave them no locus standi, and had allowed the respondents' application for security during removal of ballast from the disputed land. The applicants contended they learned of the judgment only through an online search, that the estate was condemned unheard, that their land was compulsorily acquired without compensation, and that the first respondent, a foreign company, would leave Kenya, rendering any successful appeal nugatory. Applying the settled twin principles for stay pending appeal - arguability and nugatory effect - the Court found the points on locus standi and uncompensated acquisition arguable, and was satisfied that the respondent's departure from the jurisdiction would make a successful appeal an academic exercise. Only the applicants appeared and filed submissions; the respondents and interested parties, though served, did not attend. The Court allowed the motion, staying execution of the ELC judgment pending the intended appeal, with costs of the motion in the appeal. The ruling does not disturb the decision below; it preserves the status quo pending appeal.

Key legal issues

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01

Whether the intended appeal is arguable

Holding

The applicants' points on locus standi under limited grant and on uncompensated compulsory acquisition were arguable.

Reasoning

The applicants faulted the ELC judge for holding that a limited grant of letters of administration gave no locus standi, and complained that their land would be lost without compensation. The Court found these were not idle points but points requiring consideration, satisfying the first limb of the stay test.

02

Whether the appeal would be rendered nugatory absent stay

Holding

If the foreign respondent left the jurisdiction, a successful appeal could not be enforced, rendering it nugatory.

Reasoning

The respondent is a foreign company whose projects were ending, and it might relocate out of Kenya. If it left the jurisdiction and the appeal succeeded, the applicants could not enforce any positive orders, making the appeal an academic exercise. The nugatory limb was satisfied and the motion was allowed.

p. 3

Legal principles established

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  • An applicant for stay of execution pending appeal must demonstrate that the appeal is arguable and that it would be rendered nugatory absent stay.
  • An arguable point is not one that will necessarily succeed, but one that requires consideration by the Court.

Court orders

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  1. 1.Stay of execution of the judgment of the Environment and Land Court at Eldoret dated 10 December 2021 pending the hearing and determination of the intended appeal
  2. 2.Costs of the Motion to be in the appeal
On appeal from
Environment and Land Court of Kenya at Eldoret
ELC Case No. 351 of 2015
Jurisdiction invoked
Inherent appellate jurisdiction to grant stay of execution pending appeal to the Court of Appeal (rule 5(2)(b) jurisdiction, per Charter House Bank line of authority)

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, "Kigen & another (Suing as legal representatives of the Estate of the Late Zakayo Sawe Arap Ngasura) v China Hanan International Group Limited & 3 others", Case Analysis (2022). Civil Application E034 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1236/eng@2022-11-04

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