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Court of AppealDismissedNot stated in the judgment (application by notice of motion under Rule 5(2)(b) of the Court of Appeal Rules)· [2023] KECA 1140 (KLR)

Nairobi Aviation College v Ababu & 3 others (Civil Application E430 of 2022) [2023] KECA 1140 (KLR)

Court of Appeal
22 September 2023
HOHannah OkwenguMohamed Abdulahi WarsameM. WarsameJMJ. Mativo
1,818 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to pause a land case, confirming that winning a stay requires proving both an arguable appeal and real, unfixable harm.

What this practically means

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Executive summary

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Nairobi Aviation College, the 1st defendant in a land suit before the Environment and Land Court, sought leave from the Court of Appeal under Rule 5(2)(b) to stay ELC proceedings pending an intended appeal against a ruling of October 3, 2022 dismissing its motion to reopen its case. The applicant's case had been closed for non-attendance at the hearing of May 23, 2022, and it wished to cross-examine the 1st respondent's witnesses and to testify. It invoked natural justice, Article 50(1), Article 159, section 146(4) of the Evidence Act and Order 18 rule 10 of the Civil Procedure Rules, and argued the intended appeal would be rendered nugatory. The 1st respondent opposed, citing delay, the applicant's possession of the suit land, and the decade-old age of the suit. The Court, Okwengu, Warsame and Mativo JJA, applied the two-limb Rule 5(2)(b) test. It found one arguable issue - the exercise of the trial Judge's discretion - sufficed to establish arguability. However, applying David Morton Silverstein v Atsango Chesoni, it held that if the appeal succeeded the matter would simply be remitted for cross-examination, so only the intervening ELC proceedings, not the appeal, would be rendered otiose, and costs could cure any prejudice. The applicant failed the mandatory nugatory limb, and the motion was dismissed with no order as to costs. The judgment binds subordinate courts and the ELC on the Rule 5(2)(b) principles it restates.

Key legal issues

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01

Whether the applicant had an arguable appeal

Holding

Yes - the complaint about the trial Judge's exercise of discretion in declining to recall witnesses was not frivolous, so one arguable issue sufficed.

Reasoning

The intended appeal challenges the exercise of judicial discretion by the trial Judge in refusing to reopen the applicant's case and allow recall of witnesses. The court held such a challenge is not frivolous and, citing Yellow Horse Inns, a single arguable issue is enough to cross the arguability threshold.

p. 3
02

Whether the intended appeal would be rendered nugatory absent a stay

Holding

No - if the appeal succeeded, the matter would simply be remitted for cross-examination, and only the intervening ELC proceedings, not the appeal, would be rendered otiose.

Reasoning

Following David Morton Silverstein v Atsango Chesoni, the court reasoned that a successful appeal would remit the matter to the ELC for cross-examination of witnesses; any prejudice is curable by costs. The applicant therefore failed the nugatory limb, and both limbs being mandatory, the application failed.

p. 4

Legal principles established

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  • An applicant for stay of proceedings under Rule 5(2)(b) must satisfy both the arguability limb and the nugatory limb; failure of either is fatal.
  • One arguable issue is sufficient to demonstrate that an appeal is arguable.
  • Where a successful appeal would merely render interlocutory proceedings otiose and an award of costs can remedy any prejudice, the appeal is not rendered nugatory.

Court orders

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  1. 1.The applicant's motion for stay of proceedings is dismissed
  2. 2.No order as to costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 50(1)
  • Constitution of Kenya, 2010Article 159; Article 159(2)(a)(b)(c)(d) & (e)
  • Court of Appeal RulesRule 5(2)(b)
  • Evidence ActSection 146(4)
  • Civil Procedure RulesOrder 18 rule 10

Cases cited (5)

  • Reliance Bank Limited v Norlake Investments Limited
    [2002] 1 EA 227
  • David Morton Silverstein vs Atsango Chesoni
    [2002] eKLR
  • Stanley Kangethe Kinyanjui vs Tony Ketter & 5 others
    [2013] eKLR
  • Katangi Developers Limited v Prafula Enterprises Limited & another
    [2018] eKLR
  • Yellow Horse Inns Limited v A. A. Kawir Transporters & 4 others
    [2014] eKLR
On appeal from
Environment and Land Court
Not stated
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules (stay of proceedings pending appeal)

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, "Nairobi Aviation College v Ababu & 3 others (Civil Application E430 of 2022) [2023] KECA 1140 (KLR)", Case Analysis (2023). Not stated in the judgment (application by notice of motion under Rule 5(2)(b) of the Court of Appeal Rules). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/1140/eng@2023-09-22

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