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Court of AppealPartially AllowedApplication dated 28th February 2023 in intended appeal from ELC No. 136 of 2018 (Malindi)· [2023] KECA 654 (KLR)

Doshi v Chemutut & 7 others (Civil Application E004 of 2023) [2023] KECA 654 (KLR)

Court of Appeal of Kenya
9 June 2023
SKS. Gatembu KairuJLJ. LesiitGOG.V. Odunga
2,591 words in judgment
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The bottom line

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Kenya's Court of Appeal blocked any sale of disputed land pending appeal, but declined to pause the order to refund Kshs. 7.5 million.

What this practically means

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Executive summary

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The Applicant, Ketan Navinchandra Doshi, moved the Court of Appeal at Mombasa under sections 3(2), 3(A) and 3B of the Appellate Jurisdiction Act and Rules 1(2) and 5(2)(b) of the Court of Appeal Rules 2022 seeking stay of execution of a judgment of the Environment and Land Court at Malindi in ELC No. 136 of 2018, pending his intended appeal. The ELC judgment had cancelled two of his subdivisions and ordered him to refund Kshs. 7,500,000/- to the 2nd and 3rd Respondents in third-party proceedings arising from competing claims over land. Applying the settled Rule 5(2)(b) principles restated in Stanley Kangethe Kinyanjui v Tony Ketter, the Court found the first limb satisfied: the draft memorandum raised arguable points, including whether any interest could be created through a lapsed letter of offer, whether compliance with a lapsed offer can be retrospective, and whether a title founded on a non-existent offer is a nullity. On the nugatory limb, the Court was satisfied that the sale of the land would cause irreversible loss, holding that damages cannot atone loss of proprietorship of land. However, it declined to stay the money decree, finding the Applicant had not shown the 2nd and 3rd Respondents could not refund the decretal sum if the appeal succeeded. The application was allowed in part: the Court prohibited any dealing or sale of the suit property pending the appeal, declined stay of the money decree, and ordered that costs of the application abide the outcome of the appeal.

Key legal issues

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01

Whether the intended appeal is arguable

Holding

The intended appeal is arguable, raising among others whether retrospective compliance with a lapsed offer of land is possible, whether any interest was created through a lapsed offer, and whether a title founded on a non-existent offer is a nullity.

Reasoning

The Court applied the settled two-limb test for Rule 5(2)(b) applications. It found the draft memorandum raised seven grounds consistent with grievances on the face of the application, including whether the 1st Respondent acquired any legal interest after the offer lapsed without compliance. The Court held these were not frivolous, satisfying the first limb; it relied on Somak Travels that one arguable point suffices and an arguable appeal need not succeed.

p. 4
02

Whether the intended appeal would be rendered nugatory without stay

Holding

The nugatory limb was satisfied only in part: loss of the land would be irreversible since damages cannot atone loss of proprietorship, but the money decree was repayable and its execution was not shown to be irreversible.

Reasoning

The Court accepted that if the land were sold, the Applicant would lose both the funds paid and the land that ought to revert to him, and that damages cannot atone loss of proprietorship of land. However, regarding the money decree of Kshs. 7,500,000/- in favour of the 2nd and 3rd Respondents, the Applicant failed to demonstrate they could not refund the decretal amount if the appeal succeeded, so stay of that decree was declined.

p. 5

Legal principles established

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  • For stay under Rule 5(2)(b), an applicant must show the appeal (or intended appeal) is arguable and that it would be rendered nugatory if stay is not granted.
  • An arguable appeal need not necessarily succeed; it suffices if it raises only one triable issue.
  • Damages cannot adequately atone for loss of proprietorship of land, which may render an appeal nugatory.

Court orders

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  1. 1.The application is allowed in terms of order 3 to the extent that there should be no dealing or sale of the property the subject matter of the intended appeal pending the hearing and determination of the intended appeal
  2. 2.The stay of execution of the decree as against the 2nd and 3rd Respondents is declined
  3. 3.The costs of the application shall abide the outcome of the appeal

Authorities

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Legislation

  • Appellate Jurisdiction ActSections 3(2), 3(A), 3B
  • Court of Appeal Rules 2022Rule 1(2)
  • Court of Appeal Rules 2022Rule 5(2)(b)
  • Evidence ActSections 107, 108
  • Limitation of Actions Act

Cases cited (6)

  • Stanley Kangethe Kinyanjui vs Tony Ketter & 5 others
    [2013] eKLR
  • Mtwapa EPZ Limited v. Coast Apparel EPZ Limited & Another
    (2018) eKLR
  • Mcfoy Limited Vs Africa Co. Ltd.
    (1961) 3 All E.R
  • Somak Travels Ltd vs Gladys Aganyo
    [2016] eKLR
  • Reliance Bank Limited v. Norlake Investments Ltd
    (2002) 1 EA 227
  • Kenlink Global Limited & 2 Others vs Paramount Universal Bank Limited
    (2021) eKLR
On appeal from
Environment and Land Court at Malindi
ELC No. 136 of 2018
Jurisdiction invoked
Sections 3(2), 3(A) and 3B of the Appellate Jurisdiction Act; Rule 1(2) and Rule 5(2)(b) of the Court of Appeal Rules 2022

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, "Doshi v Chemutut & 7 others (Civil Application E004 of 2023) [2023] KECA 654 (KLR)", Case Analysis (2023). Application dated 28th February 2023 in intended appeal from ELC No. 136 of 2018 (Malindi). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/654/eng@2023-06-09

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