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Court of AppealPartially AllowedNotice of motion dated March 9, 2022 (rule 5(2)(b) application) - not stated in the judgment

Njeri & 2 others v Mbutti & another (Civil Application E089 of 2022) [2023] KECA 225 (KLR)

Court of Appeal of Kenya
3 March 2023
814 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Court of Appeal stopped the eviction of three long-time occupants from Nairobi land until their appeal is heard, because the lower court never determined how far they had encroached.

What this practically means

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Executive summary

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The applicants, Felista Njeri, Nellius Wangui and Jane Gacu, moved the Court of Appeal under rule 5(2)(b) of the Court of Appeal Rules seeking an injunction to restrain the respondents, Moses Kamau Mbutti and David Kuria Mbutti, from evicting them from Dagoretti/Riruta/5443 pending appeal. The application followed a judgment of the Environment and Land Court delivered on March 3, 2022 in favour of the respondents, directing eviction of the applicants from the suit property, which the applicants described as ancestral and matrimonial land they had occupied for over 40 years. The respondents opposed, contending the applicants had not proved 40 years' occupation and that the intended demolition of illegal structures was not extrajudicial. The Court of Appeal, comprising Asike-Makhandia, Sichale and Omondi JJA, applied the twin test articulated in Stanley Kangethe Kinyanjui v Tony Keter & Others: the applicant must show an arguable appeal and that it would be rendered nugatory absent stay. The court found the appeal arguable on the ground that the judge ordered vacation of the suit property without determining the extent of encroachment, and found the nugatory limb satisfied because the applicants faced eviction from land. Both counsel relied wholly on written submissions. The court granted the 2nd and 3rd prayers in the notice of motion of March 9, 2022, thereby preserving the status quo pending the hearing of the appeal. The judgment is a single unanimous decision of the bench with no separate opinions and no order as to costs.

Key legal issues

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01

Whether the applicants met the twin test under rule 5(2)(b) for an injunction/stay pending appeal

Holding

The court found both limbs satisfied: the appeal was arguable on the ground that the eviction order was made without determining the extent of encroachment, and eviction from land would render the appeal nugatory.

Reasoning

Applying the principles in Stanley Kangethe Kinyanjui v Tony Keter & Others, the court held that a single bona fide arguable ground suffices. The applicants raised the ground that the ELC judgment ordered eviction without addressing the boundary dispute or extent of encroachment. On the second limb, the applicants risked eviction from land they claimed to have occupied for over 40 years, an irreversible outcome; the court did not make definitive findings on the facts.

p. 3

Legal principles established

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  • An applicant under rule 5(2)(b) must satisfy the twin principles of an arguable appeal and nugatory effect, and a single bona fide arguable ground suffices.
  • In a rule 5(2)(b) application the court must not make definitive or final findings of fact or law.
  • 'Nugatory' is not confined to worthlessness; it includes trifling effect, and reversibility or compensability in damages is considered.

Court orders

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  1. 1.The 2nd and 3rd prayers in the notice of motion dated March 9, 2022 granted as sought (injunction restraining the respondents from evicting the applicants from Dagoretti/Riruta/5433 pending appeal)
On appeal from
Environment and Land Court
not stated
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules (original and discretionary jurisdiction to grant stay of execution/injunction pending appeal)

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, "Njeri & 2 others v Mbutti & another (Civil Application E089 of 2022) [2023] KECA 225 (KLR)", Case Analysis (2023). Notice of motion dated March 9, 2022 (rule 5(2)(b) application) - not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/225/eng@2023-03-03

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