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Court of AppealDismissedCivil Appeal (Application) E078 of 2022· [2022] KECA 1375 (KLR)

Lalo & 227 others v Kahia Transporters Limited; Cabinet Secretary, Ministry of Lands & Physical Planning & 5 others (Affected Party)

Court of Appeal
16 December 2022
1,414 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to pause a major land case, ruling that prejudice fixable by paying costs is not enough to stop proceedings.

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, Lesiit and Odunga, JJA) on a motion dated August 31, 2022 brought under Rule 5(2)(b) of the Court of Appeal Rules. The applicants, 228 persons, sought a stay of proceedings in ELC Petition No. 2 of 2022 (formerly Mombasa ELC Petition No. 11 of 2022) pending the hearing of their intended appeal against a ruling of the Environment and Land Court (L. Naikuni, J.) delivered on July 18, 2022. That ruling had declined to set aside ex parte orders issued on March 15, 2022, joined the applicants as parties to the petition, and fixed the petition for viva voce hearing. The applicants argued the appeal was arguable on grounds including that the Judge erred in treating them as strangers, in declining to set aside orders allegedly procured by a forged lease and certificate of title, and in fixing the petition for hearing despite a declared lack of jurisdiction over the Maji ya Chumvi Adjudication Section. The court applied the settled two-limb test: it found the appeal arguable, holding that a single arguable point suffices. However, it held the applicants had not demonstrated the appeal would be rendered nugatory, since any prejudice could be compensated by costs, and their complaints were matters for the ELC on the merits. The application was dismissed. Notably, the text of the ruling ends mid-sentence, so no costs order is recorded.

Key legal issues

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01

Whether the intended appeal is arguable under Rule 5(2)(b)

Holding

The appeal was found arguable on the grounds raised, including jurisdiction over the adjudication process and the ex parte orders of March 15, 2022

Reasoning

The court applied the settled principles in Stanley Kangethe Kinyanjui v Tony Ketter, noting that an arguable appeal need not succeed but must be worthy of consideration, and that a single arguable point suffices. The grounds articulated by counsel for the applicants were sufficient to satisfy the arguability threshold.

p. 2
02

Whether the appeal would be rendered nugatory without a stay of the ELC proceedings

Holding

The nugatory-prong failed: no prejudice was shown that could not be compensated by costs, and the matters raised were for the ELC on the merits

Reasoning

The court noted the applicants themselves sought joinder in the petition, and that their complaints about being forced to participate and about the number of plots involved were merits questions for the ELC. Prejudice compensable by costs does not satisfy the nugatory test, so the second limb of the Rule 5(2)(b) test was not met.

p. 3

Legal principles established

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  • An arguable appeal is not one that will necessarily succeed but one that is worthy of the court's consideration, and a single arguable point suffices
  • Stay of proceedings is a serious, grave and fundamental judicial action which interferes with the right of a party to conduct litigation
  • In deciding whether to stay proceedings the court weighs the need for expeditious disposal, arguability of the appeal, judicial time and expedition of the application

Court orders

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  1. 1.Dismissal of the application dated August 31, 2022 seeking stay of proceedings in ELC Petition No. 2 of 2022 pending the appeal
On appeal from
Environment and Land Court at Mombasa
ELC Petition No. 2 of 2022 (formerly Mombasa ELC Petition No. 11 of 2022)
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, "Lalo & 227 others v Kahia Transporters Limited; Cabinet Secretary, Ministry of Lands & Physical Planning & 5 others (Affected Party)", Case Analysis (2022). Civil Appeal (Application) E078 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1375/eng@2022-12-16

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