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Court of AppealDismissedCivil Appeal (Application) E683 of 2021· [2022] KECA 1399 (KLR)

Stephen Kinuthia Ndichu (As administrator of the Estate of Peninah Wambui Kinuthia) & another v Jane Njeri Kibutha & 4 others

Court of Appeal
16 December 2022
2,167 words in judgment
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The bottom line

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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

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Executive summary

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This is a ruling of the Court of Appeal at Nairobi (D. K. Musinga, H. A. Omondi and P. M. Gachoka, JJA) on a notice of motion under sections 3A and 3B of the Appellate Jurisdiction Act and Rule 5(2)(b) of the Court of Appeal Rules, seeking a stay of execution of, and an injunction ancillary to, the judgment of the Environment and Land Court at Nairobi (L. Komingoi, J.) of 22 July 2021 in ELC Case No. 594 of 2010. The trial court had entered a permanent injunction restraining the applicants from interfering with land parcel Githunguri/Kimathi 966, holding that the transfer of the parcel by the late Hannah Karura Kimunya to the respondents in her lifetime was not fraudulent and that she did not hold it in trust for the applicants. The Court of Appeal restated the twin principles for a stay under Rule 5(2)(b): an arguable appeal and nugatory-ness. It found the applicants' grounds - fraud, testamentary capacity, evaluation of evidence and burden of proof - doubtful of arguability given the lifetime transfer, and held that no nugatory-ness was shown since the decree was injunctive and the supporting affidavit alleged no impending sale or alienation; granting the stay would merely permit the conduct the trial court had enjoined. The application was dismissed with no orders as to costs, the respondents having filed no response. The decision below was not disturbed; the intended appeal remains pending.

Key legal issues

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Arguability of the intended appeal

Holding

The Court was doubtful of arguability given the land was transferred by the deceased in her lifetime and fraud allegations were dismissed at trial.

Reasoning

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.

p. 4
02

Nugatory-ness of the appeal

Holding

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.

Reasoning

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.

p. 5

Legal principles established

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  • 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

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  1. 1.Dismissal of the notice of motion dated seeking stay of execution and injunction
  2. 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

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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, "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.