Mwinyi v Bhai & another (Civil Application E049 of 2021) [2023] KECA 12 (KLR)
The bottom line
#Kenya's Court of Appeal halted eviction of a Mombasa homeowner, but only for 30 days pending filing of her appeal record.
What this practically means
#Executive summary
#Key legal issues
#Test for grant of stay of execution pending appeal under Rule 5(2)(b)
The applicant must satisfy two requirements: an arguable appeal, and that the appeal would be rendered nugatory unless stay is granted.
The Court restated the settled principles, citing Stanley Kangethe Kinyanjui v Tony Ketter & 5 others. Arguability does not require the appeal to succeed, only that it is not frivolous and merits full argument; one triable issue suffices. Nugatory-ness is assessed by whether what is sought to be stayed is reversible or, if not reversible, whether damages will reasonably compensate the aggrieved party. The Court exercises original jurisdiction under Rule 5(2)(b).
Whether the Applicant established an arguable appeal
Yes - the ground that the ELC erred in finding the Respondents were the rightful owners of the suit property, including the house thereon, was not frivolous.
Although the application and supporting affidavits focused on the alleged illegality of the execution process rather than grievances with the judgment, the Applicant's submissions showed she was aggrieved by the findings on ownership of the suit property and the house thereon. That was a triable, non-frivolous ground. The failure to annex a draft memorandum of appeal was curable since grievances were sufficiently articulated in submissions.
Whether the appeal would be rendered nugatory without stay
Yes - the Applicant was still living on the partly demolished house, and without stay the substratum of the appeal would be destroyed.
Counsel on both sides confirmed the Applicant remained on the partly demolished house on the suit property. Given that the appeal concerned ownership of that house and any demolition could not readily be reversed or compensated, the Court found that if stay were not granted the substratum of the appeal would be destroyed and the appeal rendered nugatory, satisfying the second limb.
Whether to grant an unconditional or conditional stay
A conditional stay was granted, conditioned on filing and serving the memorandum and record of appeal within 30 days, failing which the stay lapses automatically.
Although the threshold for stay was met, the Applicant delayed in bringing the application after the ELC dismissed her stay application on February 4, 2021, and did not demonstrate steps taken to prosecute the appeal since filing the Notice of Appeal. Balancing the interests of both parties, the Court granted stay only on condition of expeditious filing of the record, with automatic lapse on default and priority listing thereafter.
Legal principles established
#- An arguable appeal under Rule 5(2)(b) need not necessarily succeed; it suffices that the appeal is not frivolous and raises at least one triable issue.
- Omission to annex a draft proposed memorandum of appeal to a Rule 5(2)(b) stay application is not fatal and is curable where the applicant sufficiently sets out grievances on the face of the application.
- Even where the Rule 5(2)(b) threshold is met, a conditional stay may be granted where the applicant has delayed and not prosecuted the appeal, in the interests of justice.
Court orders
#- 1.Stay of execution of the judgment delivered in Mombasa ELC Case 424 of 1996 by the Environment and Land Court on January 17, 2019 pending the hearing and determination of the appeal, on condition that the Applicant files and serves the memorandum and record of appeal within 30 days from the date of delivery of the ruling
- 2.The appeal to be fixed for case management before the Deputy Registrar for directions on filing of submissions, and thereafter fixed for hearing by the Registry on the basis of priority
- 3.Upon default by the Applicant in filing and serving the memorandum and record of appeal within 30 days, the orders of stay granted shall automatically lapse and stand discharged
- 4.No order as regards the costs of the application
- On appeal from
- Environment and Land Court at Mombasa
- Mombasa ELC Case 424 of 1996
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules (this Court exercises original jurisdiction under Rule 5(2)(b))
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mwinyi v Bhai & another (Civil Application E049 of 2021) [2023] KECA 12 (KLR)", Case Analysis (2023). Notice of Motion dated June 23, 2021 (application for stay of execution pending appeal from Mombasa ELC Case 424 of 1996). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/12/eng@2023-01-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.