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Court of AppealDismissedCivil Application E044 of 2022· [2022] KECA 1382 (KLR)

Nyanjui & another (Suing on their own behalf and as legal representatives of Arthur Nyanjui Gichui) v Gitau

Court of Appeal
15 December 2022
FOFA OchiengLALA AchodeWKWK Korir
2,921 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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The Court of Appeal refused to stop an eviction because the applicants failed to attach the judgment they were appealing and couldn't show irreversible harm.

What this practically means

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Executive summary

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The applicants, suing as legal representatives of Arthur Nyanjui Gichui, moved the Court of Appeal at Nakuru under rules 5(2)(b), 41, 42 and 43(1) of the Court of Appeal Rules, 2010 seeking stay of execution of the judgment and decree of D O Ohungo, J in Nakuru ELC Case No 103 of 2012, pending the hearing of their appeal (Civil Appeal No 3 of 2021). An eviction order had issued against them, and they contended that the appeal was arguable and would be rendered nugatory if the land, their source of agricultural livelihood, were lost. The respondent, the registered owner of LR no Subukia/Subukia Block 12/372 (Arash), opposed the motion, pointing out that the trial court had already granted conditional stay which the applicants had neither satisfied nor appealed. Applying the settled twin principles in Stanley Kangethe Kinyanjui vs Tony Ketter, the court held that the applicants failed on both limbs. First, although the memorandum of appeal raised 15 grounds, the applicants did not exhibit the impugned judgment, decree or orders, so the court could not assess arguability. Secondly, the alleged loss of seasonal harvests was compensable in damages, and possession could be returned if the appeal succeeded, so the appeal would not be rendered nugatory. The court also faulted the applicants' non-disclosure of the trial court's conditional stay orders. The application was dismissed with costs to the respondent.

Key legal issues

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01

Whether the appeal is arguable

Holding

The application fails on arguability because the applicants did not exhibit the judgment, decree or orders being appealed; the court cannot assess arguability against grounds of appeal without the impugned decision.

Reasoning

The memorandum of appeal raised 15 grounds which on their face required evaluation, but arguability must be assessed by considering the grounds against the impugned judgment. The applicants relied only on their advocate's averments. Citing Eunice Makori, the court held that the absence of the impugned decision on record leaves no basis for exercising discretion in the applicant's favour.

p. 4
02

Whether the appeal will be rendered nugatory without stay

Holding

No nugatory effect shown: eviction is reversible since possession can be returned if the appeal succeeds, and loss of seasonal agricultural yields is compensable by damages.

Reasoning

The suit land is registered in the respondent's name and used by the applicants for farming. The alleged loss is loss of seasonal yields after each harvest, which damages can adequately compensate. The court accepted the respondent's submission that if the appeal succeeds, possession of the land can be handed back to the applicants, so nothing irreversible would occur upon execution.

p. 5
03

Non-disclosure of conditional stay orders granted by the trial court

Holding

The applicants ought to have disclosed the conditional stay orders obtained from the Environment and Land Court and explained their failure to satisfy the conditions; non-disclosure weighs against the exercise of discretion.

Reasoning

Although the applicants were before the Court of Appeal as of right under rule 5(2)(b), they had earlier obtained conditional stay from the trial court and had not appealed that order nor satisfied its conditions. The court treated disclosure of such orders as an element of good faith required of parties seeking discretionary relief, and regarded the omission as further ground for dismissal.

p. 5

Legal principles established

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  • An applicant under rule 5(2)(b) must satisfy both the arguable appeal and nugatory limbs, and must place the impugned decision before the court to establish arguability
  • An appeal is not rendered nugatory where what is sought to be stayed is reversible or where damages can reasonably compensate the aggrieved party
  • A party seeking discretionary relief must disclose conditional stay orders obtained in the trial court and explain non-compliance with their conditions

Court orders

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  1. 1.The application dated July 25, 2022 is dismissed
  2. 2.The respondent shall have the costs of the application from the applicants

Authorities

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Legislation

  • Court of Appeal Rules, 2010rule 5(2)(b)
  • Court of Appeal Rules, 2010rule 41
  • Court of Appeal Rules, 2010rule 42
  • Court of Appeal Rules, 2010rule 43(1)
  • Court of Appeal Rules, 2010rule 75

Cases cited (13)

  • Butt vs Rent Restriction Tribunal
    [1979] eKLR

    Factors for granting or refusing stay of execution pending appeal

  • RWW vs. EKW
    [2019] eKLR

    Purpose of an order for stay of execution pending appeal

  • Stanley Kangethe Kinyanjui vs Tony Ketter & 5 others
    [2013] eKLR

    Consolidated principles for rule 5(2)(b) applications, including the twin limbs and onus on the applicant

  • Ruben & 9 Others v Nderitu & Another
    (1989) KLR 459

    Rule 5(2)(b) jurisdiction is original and discretionary, not an appeal from the trial judge's discretion

  • Halai & Another v Thornton & Turpin (1963) Ltd.
    (1990) KLR 365

    Court becomes seized of the matter only after notice of appeal is filed under rule 75

  • David Morton Silverstein v Atsango Chesoni
    Civil Application no Nai 189 of 2001

    Whether an appeal will be rendered nugatory depends on each case's own facts

  • Damji Pragji Mandavia v Sara Lee Household & Body Care (K) Ltd
    Civil Application No Nai 345 of 2004

    A single bona fide arguable ground suffices; court must not make final findings at the interlocutory stage

  • Joseph Gitahi Gachau & Another v Pioneer Holdings (A) Ltd & 2 others
    Civil Application No 124 of 2008

    An arguable appeal is one that is not frivolous and ought to be argued fully

  • Reliance Bank Ltd v Norlake Investments Ltd
    [2002] 1 EA 227

    Meaning of 'nugatory': worthless, futile, invalid or trifling

  • International Laboratory for Research on Animal Diseases v Kinyua
    [1990] KLR 403

    Onus on respondent to rebut impecunity-based nugatory claims by evidence

  • Safaricom Limited vs Ocean View Beach Hotel Limited & 2 others
    [2010] eKLR

    Purpose and reach of rule 5: interim relief where a party has appealed or intends to appeal

  • Attorney General & another vs Eunice Makori & another
    [2021] eKLR

    Applicant must place the impugned decision and grounds before the court; absence of the decision defeats the motion

  • Permanent Secretary Ministry of Roads & another vs Fleur Investments Limited
    [2014] eKLR

    Meaning of a trifling appeal and the term 'nugatory'

On appeal from
Environment and Land Court at Nakuru
ELC Case No 103 of 2012
Jurisdiction invoked
Rules 5(2)(b), 41, 42 and 43(1) of the Court of Appeal Rules, 2010

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (4)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Nyanjui & another (Suing on their own behalf and as legal representatives of Arthur Nyanjui Gichui) v Gitau", Case Analysis (2022). Civil Application E044 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1382/eng@2022-12-15

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