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Court of AppealPartially AllowedCivil Application E019 of 2022· [2022] KECA 1299 (KLR)

Muhangani & another v Mwadziwe & another

Court of Appeal
2 December 2022
1,702 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 halted an eviction, confirming that even one arguable appeal point can win a stay of execution.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Mombasa (Kairu, Nyamweya and Lessit, JJA) on a notice of motion dated August 2, 2022 by Wycliff Jirongo Muhangani and Francis Mujumba Aluha under rule 5(2)(b) of the Court of Appeal Rules, seeking stay of execution of the decree and orders of the Environment and Land Court at Mombasa (Matheka, J) delivered on January 18, 2022 in ELC No. 232 of 2011, which ordered them to vacate suit property Block No 96/19 and give vacant possession within 90 days and provided for removal of a caution. The respondents opposed, arguing the notice of appeal was filed out of time so no valid appeal was pending, that the applicants had occupied the property since 1996 and delayed the matter, and that similar stay applications had been refused. The court applied the settled twin-threshold test under rule 5(2)(b). On arguability, it found a single arguable point sufficient: whether the ELC erred in finding the sale agreement frustrated where no notice of completion was served as required by the incorporated 1989 Law Society Conditions of Sale. On the nugatory limb, it noted execution had commenced and eviction was imminent; loss of the property to third parties would not be compensable in damages. The court also held that refusal of stay by the High Court does not bar a fresh application in the Court of Appeal, and noted that the applicants' application to extend time to file the notice of appeal had been granted on October 21, 2022. The application was allowed in terms of prayer 4, with stay granted pending the intended appeal; costs were made to abide the outcome of the appeal.

Key legal issues

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01

Arguability of the intended appeal

Holding

The applicants demonstrated an arguable appeal on whether the sale agreement was frustrated, satisfying the first threshold.

Reasoning

Applying Somak Travels, the court held that a single arguable point suffices. The applicants contended the ELC erred in finding they frustrated the sale agreement where no notice of completion was served as required by the 1989 Law Society Conditions of Sale expressly incorporated into the agreement. The court found this issue arguable and not frivolous.

p. 3
02

Nugatory value of the intended appeal

Holding

Eviction was imminent and loss of the property to third parties would not be compensable in damages, rendering the appeal nugatory.

Reasoning

It was uncontested that the respondents had begun execution and eviction was imminent. The applicants occupied the suit property, said to be their only home. If the property changed hands and was sold to third parties, their loss could not reasonably be compensated by damages, satisfying the second threshold under the Kinyanjui v Keter test.

p. 3
03

Validity of the appeal given late filing of the notice of appeal

Holding

The objection failed because an application to extend time to file the notice of appeal had been granted on October 21, 2022.

Reasoning

The respondents argued the notice of appeal was filed out of time, so no valid appeal was pending. Counsel for the applicants disclosed a pending extension application; the court noted that ruling was delivered as scheduled and time was extended. The court also held that prior refusal of stay by the High Court does not bar a fresh application in the Court of Appeal.

p. 3

Legal principles established

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  • An applicant under rule 5(2)(b) must satisfy the twin thresholds of an arguable appeal and that the appeal would be rendered nugatory if stay is not granted.
  • One arguable point suffices for the first threshold, and it need not be a point that must succeed on appeal.
  • Omission to annex a draft memorandum of appeal is not fatal where grievances are sufficiently set out on the face of the application.
  • A prior refusal of stay by the High Court or courts of equal status does not bar a fresh application before the Court of Appeal.

Court orders

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  1. 1.Stay of execution of the decree and orders arising from the judgment delivered by the Environment and Land Court at Mombasa on January 18, 2022 and all subsequent orders, pending the determination of the applicant's intended appeal, in terms of prayer 4 of the application
  2. 2.Costs of the application to abide the outcome of the appeal
On appeal from
Environment and Land Court at Mombasa
ELC No. 232 of 2011
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules; sections 1A, 1B & 3A of the Civil Procedure Act; Order 51 rule 1 of the Civil Procedure Rules, 2010

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, "Muhangani & another v Mwadziwe & another", Case Analysis (2022). Civil Application E019 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1299/eng@2022-12-02

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