Sigei v Jackson (Civil Application E072 of 2022) [2023] KECA 480 (KLR)
The bottom line
#Kenya's Court of Appeal halted an eviction, confirming that simply filing a notice of appeal is enough to unlock stay-of-execution relief.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Court has jurisdiction to entertain the application given the challenged validity of the notice of appeal
- 2.Whether the intended appeal is arguable
- 3.Whether the intended appeal will be rendered nugatory if stay of execution is not granted
- 4.Whether the respondent will suffer any prejudice if stay is granted
Key legal issues
#Jurisdiction where the notice of appeal lacks a court stamp
The Court held it had jurisdiction because a notice of appeal was on record; its validity was not the subject of the instant proceedings.
The respondent challenged the notice of appeal for lacking the court stamp and for non-compliance with Rules 75 and 77. The Court proceeded on the basis that a notice of appeal existed on record and that its validity was not in issue in the stay application, so the jurisdictional challenge failed.
Whether the intended appeal is arguable
The intended appeal was arguable because it raised the applicant's proprietary rights and the scope of interlocutory orders.
The Court examined the proposed grounds of appeal against the judgment and pleadings in the trial court. It found that the applicant's proprietary rights and the implications of the impugned ruling, as well as the scope of interlocutory orders, raised issues calling for adjudication, satisfying the arguability limb.
Whether the appeal would be rendered nugatory
The appeal would be rendered nugatory because the applicant faced eviction and the property could be disposed of, defeating recovery if the appeal succeeded.
The impugned ruling would result in the applicant's eviction from land he had occupied since 1996 and used as a livelihood. The respondent did not challenge the applicant's averments that possession would revert and the property risked disposal, so the Court accepted the applicant's fears and apprehensions.
Legal principles established
#- Under Rule 75 as read with Rule 5(2)(b) of the Court of Appeal Rules, 2022, the Court's jurisdiction on a stay application is invoked once a notice of appeal has been lodged; the validity of the notice is not a condition for entertaining the stay application where a notice of appeal exists on record.
- An application for stay under Rule 5(2)(b) turns on two limbs: an arguable appeal and whether the appeal will be rendered nugatory if stay is not granted; an arguable appeal need not be one that will necessarily succeed, only one that is not frivolous.
- An appeal is rendered nugatory only where what is sought to be stayed is irreversible and damages cannot reasonably compensate the aggrieved party.
Court orders
#- 1.Allowance of the Notice of Motion dated 4th November 2022
- 2.An order of stay of execution of the orders of the Environment and Land Court at Narok in ELC Case No. 021 of 2021 dated 24th March 2022, pending the hearing and determination of the intended appeal
- 3.Costs of the application to abide the outcome of the intended appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Environment and Land Court at Narok
- ELC Case No. 021 of 2021
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules, 2022 as read with Rule 75
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In the circumstances, we find that the Notice of Motion dated 4th November 2022 is merited. The same is allowed and an order of stay is hereby issued efiectively staying the execution of the orders of the Environment and Land Court at Narok in ELC Case No. 021 of 2021 dated 24th March, 2022 pending the hearing and determination of the intended appeal.
An arguable appeal is not one which must necessarily succeed, but one which ought to be argued fully before the court; one which is not frivolous.
Whether or not an appeal will be rendered nugatory depends on whether or not what is sought to be stayed if allowed to happen is reversible; or if it is not reversible whether damages will reasonably compensate the party aggrieved.
The costs of this application shall abide the outcome of the intended appeal.
Issues in the judgment
#The judgment does not give the respondent's name; the record refers only to 'the respondent' throughout, and the coram spells the first judge's name as 'F. SICHALE' (apparently Sichale).
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
Cite this brief
#Cite this brief
Caselaw, "Sigei v Jackson (Civil Application E072 of 2022) [2023] KECA 480 (KLR)", Case Analysis (2023). Notice of Motion dated 4th November 2022 (Court of Appeal, Nakuru). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/480/eng@2023-05-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.