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Court of AppealDismissedCivil Application No. NAI-148 of 2022 (notice of motion dated November 30, 2022)· [2023] KECA 1052 (KLR)
Stanley Iriga M'mwitari v Mercy Kanyiri Gatekia & 3 others
Court of Appeal of Kenya
24 August 2023
1,269 words in judgment
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·~5 min to read original · ~4 min briefThe bottom line
#Kenya's Court of Appeal refused to pause a land case because the lower court had dismissed the appeal, and a dismissal leaves nothing to pause.
What this practically means
#Executive summary
#The trial Senior Principal Magistrate's Court at Githongo, on February 8, 2021, entered judgment for the respondents, legal representatives of the estate of Silas Gatekia M'Mwitari, against the applicant, their uncle, over land parcel Abothuguchi/Ruiga/1866. The trial court found a customary trust requiring the applicant to hold the land in trust in equal shares and ordered cancellation of his registration to enable the respondents to take half. The applicant's counterclaim against the caution was dismissed. His first appeal to the Environment and Land Court at Meru (ELC Appeal No. E042 of 2021) was dismissed with costs, the ELC agreeing wholly with the trial court's findings. He then appealed to the Court of Appeal, raising among other grounds the test for customary trusts set by the Supreme Court in the Kiebia case, burden of proof, and fair hearing. By notice of motion dated November 30, 2022 under Rule 5(2)(b) of the Court of Appeal Rules, 2022, he sought stay of execution and/or further proceedings pending that appeal, fearing eviction that would render the appeal nugatory. The respondents opposed, citing inordinate delay and the absence of the twin limbs. The Court, Karanja, Mohammed and Muchelule, JJA, unanimously dismissed the application with costs. It applied Stanley Kangethe Kinyanjui v Tony Ketter on the twin limbs, but held dispositively that the ELC judgment was a negative order incapable of stay, following Western College of Arts and Applied Sciences v Oranga, as the ELC had ordered no party to do or refrain from doing anything. The main appeal remains pending.
Key legal issues
#01
Whether a dismissed appeal in the Environment and Land Court can be the subject of a stay of execution under Rule 5(2)(b)
Holding
No - a dismissal is a negative order incapable of stay.
Reasoning
The ELC dismissed the applicant's appeal with costs and made no positive order requiring any party to do or refrain from doing anything. Following Western College of Arts and Applied Sciences v Oranga, there is nothing existing out of the ELC judgment for the Court of Appeal to stay, so the twin limbs of Rule 5(2)(b) cannot be satisfied and the application must fail regardless of the arguability of the appeal.
p. 3
Legal principles established
#- A dismissal by a superior court is a negative order incapable of stay because there is nothing in it to be stayed.
- In an application under Rule 5(2)(b) the Court exercises original and discretionary jurisdiction, and the applicant must satisfy the twin limbs of an arguable appeal and that the appeal will be rendered nugatory if stay is not granted.
Court orders
#- 1.Dismissal of the notice of motion dated November 30, 2022 seeking stay of execution and/or further proceedings in Meru Environment and Land Court Appeal No. E042 of 2022
- 2.Costs of the application to the respondents
- On appeal from
- Environment and Land Court at Meru
- ELC Appeal No. E042 of 2021
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules, 2022 and sections 3A and 3B of the Appellate Jurisdiction Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Stanley Iriga M'mwitari v Mercy Kanyiri Gatekia & 3 others", Case Analysis (2023). Civil Application No. NAI-148 of 2022 (notice of motion dated November 30, 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/1052/eng@2023-08-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.