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Court of AppealDismissedCivil Application (Rule 5(2)(b)) arising from intended appeal against ELC Case No. 232 of 2013· [2023] KECA 189 (KLR)

Kahozi Nyembo Theophile v Chemfest Limited

Court of Appeal of Kenya
3 February 2023
1,683 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to pause a land ruling because the winning party already held the title and possession, so no irreversible harm loomed.

What this practically means

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Executive summary

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The applicant, Kahozi Nyembo Theophile, moved the Court of Appeal at Nairobi by notice of motion dated June 17, 2022 under rule 5(2)(b) of the Court of Appeal Rules, seeking stay of execution of the judgment and decree of the Environment & Land Court at Nairobi (Mogeni J) delivered on May 11, 2022 in ELC Case No. 232 of 2013, pending an intended appeal. The trial court had issued a permanent injunction against the applicant, declared his title to Kikuyu/Kikuyu Block 1/903 null and void, ordered cancellation of his certificate of lease, and directed registration of the respondent as the legal and beneficial owner. The applicant contended he had purchased the property from the previous owner, Nzeyimana Noe Aveque, and alleged fraud; the respondent denied this, asserting the applicant failed to fulfil the sale agreement and that no fraud was proved at trial. Applying the twin principles governing rule 5(2)(b) applications - arguability of the intended appeal and whether it would be rendered nugatory absent a stay - the court accepted, without delving into the merits, that the appeal may be arguable. However, it held the nugatory limb failed: the pleadings showed the respondent had held title for some time, was in possession of the property, and had indicated no intention to dispose of it. The application was dismissed with costs.

Key legal issues

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01

Whether the intended appeal is arguable

Holding

The court found that the appeal may be arguable, without delving into the merits of the appeal.

Reasoning

The court reminded itself that an intended appeal need not necessarily succeed in the ultimate for purposes of rule 5(2)(b). Having considered the application, affidavits, submissions and authorities, and being careful not to appear to delve into the main appeal, it found the appeal may be arguable. However, this finding alone was insufficient; the nugatory limb still had to be satisfied.

p. 4
02

Whether the intended appeal would be rendered nugatory absent a stay

Holding

The court held that lack of a stay would not render the intended appeal nugatory and dismissed the application.

Reasoning

The pleadings showed the respondent had held a title to the property for some time and was in possession of the suit property. Further, the respondent indicated it had no intention of disposing of the property. The risk of irreversibility feared by the applicant was therefore not demonstrated, and the nugatory limb of the rule 5(2)(b) test failed.

p. 4

Legal principles established

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  • An application under rule 5(2)(b) must satisfy the twin principles: the applicant must demonstrate an arguable appeal (one that is not frivolous, though not necessarily one that will succeed) and that the appeal will be rendered nugatory if stay is not granted.
  • Whether an appeal will be rendered nugatory depends on whether what is sought to be stayed is reversible or, if irreversible, whether damages would reasonably compensate the aggrieved party.

Court orders

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  1. 1.The notice of motion dated June 17, 2022 seeking stay of execution is dismissed
On appeal from
Environment & Land Court at Nairobi
ELC Case No. 232 of 2013
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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Later judgments citing this (1)

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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, "Kahozi Nyembo Theophile v Chemfest Limited", Case Analysis (2023). Civil Application (Rule 5(2)(b)) arising from intended appeal against ELC Case No. 232 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/189/eng@2023-02-03

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