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Court of AppealAllowedCivil Application No. E852 of 2022 (intended appeal); Notice of Motion dated October 28, 2021· [2023] KECA 586 (KLR)

Kiarie & 3 others v Thuku (Civil Appeal (Application) E629 of 2021) [2023] KECA 586 (KLR)

Court of Appeal of Kenya
26 May 2023
DMD. K. MusingaKLDr. K. I. LaibutaMGM. Gachoka
2,112 words in judgment
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The bottom line

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Kenya's Court of Appeal stopped an eviction from family land, holding lifelong residents' customary trust and adverse possession claims deserve a full hearing.

What this practically means

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Executive summary

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This is a single-judgment ruling of a three-judge bench of the Court of Appeal at Nairobi (Musinga, P, Laibuta and Gachoka, JJ.A) on a Notice of Motion dated October 28, 2021 brought under rules 4, 5(2)(b) and 47 of the Court of Appeal Rules, 2010. The applicants, children of the late Kiarie Thuku, sought stay of execution of the judgment of L. Gacheru, J. of the Environment and Land Court at Thika delivered September 30, 2021, which dismissed their claim that the respondent held two Kiambaa land parcels in customary trust for his late brother's family, allowed the respondent's counterclaim, and ordered the applicants' eviction. The court applied the settled twin test under rule 5(2)(b): the appeal must be arguable and, if successful, rendered nugatory absent stay. On arguability, the court found the applicants' grounds - that the trial judge overlooked evidence of long residence supporting a customary trust and failed to address the pleaded adverse possession claim - to be bona fide and requiring full ventilation. On the nugatory limb, the imminent risk of eviction of lifelong residents and of alienation irredeemably altering the suit properties persuaded the court that stay was warranted. The application was allowed with costs in the appeal, preserving the status quo pending the intended appeal, Civil Appeal No. E852 of 2022. The trial court's judgment itself was neither affirmed nor disturbed.

Key legal issues

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01

Arguability of the intended appeal

Holding

The applicants' grounds on customary trust and adverse possession were not idle and required ventilation on appeal; a single bona fide arguable ground suffices.

Reasoning

The applicants argued that the trial judge erred in failing to find a customary trust despite evidence that the applicants were born and raised on the suit properties, and in not addressing the pleaded claim for adverse possession. The court found these contentions not idle and requiring full argument, satisfying the first limb of the rule 5(2)(b) test without saying more so as not to embarrass the bench hearing the appeal.

p. 4
02

Nugatory aspect

Holding

The risk of eviction and alienation of the suit properties rendered the appeal nugatory absent stay.

Reasoning

The trial court had ordered the applicants' eviction from land where they had lived all their lives, and nothing would stop the respondent from alienating or disposing of the land in a manner irredeemably altering its physical character. The applicants and their families would likely be rendered homeless, satisfying the second limb of the test.

p. 4

Legal principles established

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  • The twin test for an application under rule 5(2)(b) is that the applicant must demonstrate that the appeal or intended appeal is arguable and that, unless the orders sought are granted, the appeal, if successful, shall be rendered nugatory.
  • An arguable appeal need not necessarily succeed; it is one that is not frivolous and a single bona fide arguable ground suffices.

Court orders

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  1. 1.Notice of Motion dated October 28, 2021 allowed
  2. 2.Stay of execution of the judgment of the Environment and Land Court at Thika delivered September 30, 2021 pending the hearing and determination of the intended appeal
  3. 3.Costs of the application to the applicants, in the appeal

Authorities

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Legislation

  • Court of Appeal Rules, 2010rule 4
  • Court of Appeal Rules, 2010rule 5(2)(b)
  • Court of Appeal Rules, 2010rule 47

Cases cited (3)

  • Stanley Kangethe Kinyanjui v Tony Ketter & 5 others
    [2013] eKLR
  • Joseph Gitahi Gachau & another v Pioneer Holdings (A) Limited & 2 others
    [2009] eKLR
  • Damji Pragji Mandavia v Sara Lee Household & Body Care (K) Ltd
    Civil Application No. Nai 345 of 2004
On appeal from
Environment and Land Court, Thika
Thika Environment and Land Court Case No. 19 of 2019, Serah Wangui Kiarie & 3 others v James Njenga Thuku
Jurisdiction invoked
Rules 4, 5(2)(b) and 47 of the Court of Appeal Rules, 2010

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, "Kiarie & 3 others v Thuku (Civil Appeal (Application) E629 of 2021) [2023] KECA 586 (KLR)", Case Analysis (2023). Civil Application No. E852 of 2022 (intended appeal); Notice of Motion dated October 28, 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/586/eng@2023-05-26

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