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Court of AppealDismissedCivil Appeal (Application) E571 of 2021· [2022] KECA 1320 (KLR)

Chengo v Odida

Court of Appeal
2 December 2022
AMAK MurgorSKS Ole KantaiJMJM Mativo
1,250 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to pause a land judgment because the applicant was in contempt of court orders and had not corrected his disobedience.

What this practically means

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Executive summary

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The applicant, Martin Chengo, moved the Court of Appeal under sections 3A, 3(1), (2) and 7 of the Appellate Jurisdiction Act and rules 4, 5(2)(b) and 42 of the Court of Appeal Rules seeking stay of execution of a judgment of Komingoi, J of the Environment and Land Court dated June 11, 2020, and further orders of February 17, 2022, in ELC Case No. 648 of 2014. The judgment had declared the respondent the registered proprietor of the suit property, restrained the applicant from interfering with it, directed him to reconstruct a demolished boundary wall and remove structures, and awarded the respondent general damages of Ksh 200,000 for trespass. The applicant argued he had an arguable appeal that would be rendered nugatory absent stay, noting he faced contempt proceedings with a fine of Ksh 200,000 or four months' imprisonment in default. The respondent opposed, pointing out the applicant had only moved the courts after contempt proceedings were instituted. Applying the settled two-limb test in Charter House Bank Ltd v Central Bank of Kenya, the court found the grounds of appeal arguable but held the applicant failed the second limb: he demolished the wall without a court order, was ordered after a hearing to reconstruct it, was cited for contempt and had not purged it. Such a party, the court held, cannot be entitled to stay of execution, and the appeal would not be rendered nugatory if stay were refused. The application was dismissed with costs.

Key legal issues

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01

Test for stay of execution pending appeal

Holding

Applicant must show the appeal is arguable (not frivolous) and that it would be rendered nugatory absent stay; both limbs must be satisfied.

Reasoning

The court restated the settled two-limb test from Charter House Bank Ltd v Central Bank of Kenya. It found the grounds of appeal arguable, satisfying the first limb, but the applicant failed the second limb because refusal of stay would not render the appeal nugatory. Failure of either limb is fatal to the application.

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Effect of contempt on entitlement to stay

Holding

A party who disobeys a court order, is cited for contempt and has not purged the contempt cannot be granted stay of execution.

Reasoning

The applicant demolished a boundary wall without any court order, was ordered by the ELC after a hearing to reconstruct it, failed to comply, and was cited for contempt with a fine or jail term in default. The court held such a party cannot invoke the court's discretionary equitable remedy of stay while in continuing disobedience of the orders sought to be stayed.

p. 3

Legal principles established

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  • A party in contempt of court orders, who has not purged the contempt, is not entitled to the discretionary remedy of stay of execution pending appeal.

Court orders

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  1. 1.Application for stay of execution pending appeal dismissed with costs
On appeal from
High Court of Kenya at Nairobi (Environment and Land Court)
ELC Case No. 648 of 2014
Jurisdiction invoked
Sections 3A, 3(1), (2) and 7 of the Appellate Jurisdiction Act; rules 4, 5(2)(b) and 42 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, "Chengo v Odida", Case Analysis (2022). Civil Appeal (Application) E571 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1320/eng@2022-12-02

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