Stephen Kinuthia Ndichu (As administrator of the Estate of Peninah Wambui Kinuthia) & another v Jane Njeri Kibutha & 4 others
The bottom line
#The Court of Appeal refused to pause a land injunction, ruling the appeal was unlikely to succeed and stopping it would change nothing.
What this practically means
#Executive summary
#Key legal issues
#Arguability of the intended appeal
The Court was doubtful of arguability given the land was transferred by the deceased in her lifetime and fraud allegations were dismissed at trial.
The respondents were registered owners following an inter vivos transfer by Hannah Karura Kimunya. The applicants' only claim was a trust arising from childlessness, and fraud allegations had been dismissed by the trial court. The Court found the grounds, on the face of the record, doubtful rather than raising serious questions of law.
Nugatory-ness of the appeal
The applicants failed to demonstrate the appeal would be rendered nugatory; the decree was injunctive and no evidence of impending sale or alienation was adduced.
The judgment below was a permanent injunction restraining the applicants from interfering with the respondents' land. The supporting affidavit contained no averment that the land was being sold or alienated. Staying the injunction would simply permit the very conduct the trial court had restrained.
Legal principles established
#- An applicant under Rule 5(2)(b) must demonstrate an arguable appeal and that the appeal will be rendered nugatory if execution is not stayed.
- A single arguable issue suffices; the applicant need not show the ground would succeed.
- An arguable appeal is one that ought to be argued fully, not one that must necessarily succeed.
Court orders
#- 1.Dismissal of the notice of motion dated seeking stay of execution and injunction
- 2.No orders as to costs
- On appeal from
- Environment and Land Court at Nairobi
- Environment and Land Court Civil Case No. 594 of 2010
- Jurisdiction invoked
- Sections 3A and 3B of the Appellate Jurisdiction Act; Rules 1(2), 5(2)(b), 41, 42 and 47 of the Court of Appeal Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Stephen Kinuthia Ndichu (As administrator of the Estate of Peninah Wambui Kinuthia) & another v Jane Njeri Kibutha & 4 others", Case Analysis (2022). Civil Appeal (Application) E683 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1399/eng@2022-12-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.