Registered Trustees Africa Gospel Church v Kamunge & 2 others (Civil Application E384 of 2022) [2023] KECA 424 (KLR)
The bottom line
#Kenya's Court of Appeal refused to halt cancellation of the church's land title because it proved neither an arguable appeal nor real risk of loss.
What this practically means
#Executive summary
#Key legal issues
#Whether the intended appeal was arguable
The Court was not convinced the appeal was arguable: amalgamation requires a parent title through an original title of subdivision, which was not contested, and the applicant did not explain how it acquired the title or address the issue of fraud.
The Court held that amalgamation must have a basis in a parent title through an original title of subdivision, a fact not contested. The applicant failed to adequately explain its acquisition of the title or answer the fraud allegation, offering no document supporting the alleged amalgamation, while the respondents offered a succinct history of the two titles and the registrar of Nairobi contested the allocation.
Whether the appeal would be rendered nugatory without a stay
The applicant's apprehension was based on presumption and mere fear that the property would be sold and the sanctuary destroyed; no concrete evidence showed this would indisputably happen or that damages would be inadequate.
The applicant's nugatory argument rested on a presumption that the property would be sold and its sanctuary worth Kshs 400,000,000 destroyed. The Court held that discretion cannot be exercised on mere fear or suspicion; concrete evidence of the likelihood of loss or of the inadequacy of damages was required, and none was placed before the Court.
Legal principles established
#- An applicant under rule 5(2)(b) must satisfy the twin principles: an arguable appeal (not frivolous) and that the appeal will be rendered nugatory if stay is not granted.
- The Court cannot exercise its discretion on stay based on mere fear or suspicion; concrete evidence of irreparable harm is required.
- The essence of orders under rule 5(2)(b) is to halt something which will indisputably happen in the absence of such orders.
Court orders
#- 1.The application under rule 5(2)(b) for stay of execution pending appeal is dismissed with costs
- On appeal from
- Environment and Land Court
- ELC Case No 252 of 2018
- Jurisdiction invoked
- rule 5(2)(b) of the Court of Appeal Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Registered Trustees Africa Gospel Church v Kamunge & 2 others (Civil Application E384 of 2022) [2023] KECA 424 (KLR)", Case Analysis (2023). Civil Application (rule 5(2)(b)) — judgment dated August 30, 2018 in ELC Case No 252 of 2018 referred to; application number not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/424/eng@2023-04-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.