Korir v Nakuru Joyteck Enterprises (Civil Application E021 of 2023) [2023] KECA 1215 (KLR)
The bottom line
#The Court of Appeal refused to stop execution of a land ruling because the applicant had already been evicted and showed no arguable appeal.
What this practically means
#Executive summary
#Key legal issues
#Whether the intended appeal is arguable
The appeal was not arguable; the applicant only expressed dissatisfaction with the trial court's decision without raising bona fide arguable grounds.
The court reviewed the draft memorandum of appeal and found the applicant's central complaint was simply disgruntlement with the ruling. Citing Dennis Mogambi Mang'are, an arguable appeal need not succeed but must deserve the court's consideration; mere disgruntlement does not meet that threshold. The court declined to make definitive findings of fact or law at that stage.
Whether the appeal would be rendered nugatory without stay
The nugatory limb failed: the applicant had already been evicted and the land was in the hands of non-parties, so no reversible harm was shown.
The court noted the applicant did not dispute his eviction and that the suit land appeared to be held by persons not party to the application. Making orders affecting such persons without hearing them would condemn them unheard. Applying the principle that nugatory depends on reversibility, the applicant failed to show the appeal would be futile absent stay.
Twin principles under Rule 5(2)(b)
Both limbs must be satisfied; failure of either disposes of the application.
Restating the Kang'ethe Kinyanjui principles, the court confirmed the applicant must demonstrate both an arguable appeal and that the appeal would be rendered nugatory absent stay. Having failed on both, the application for stay and injunctive relief under Rule 5(2)(b) had to be dismissed with costs.
Legal principles established
#- An applicant under Rule 5(2)(b) must satisfy both twin principles: an arguable appeal and that the appeal will be rendered nugatory absent stay.
- Mere dissatisfaction with a trial court's decision does not establish an arguable appeal.
- Rule 5(2)(b) jurisdiction is original, independent and discretionary, to be exercised judiciously and with reason.
Court orders
#- 1.Dismissal of the application dated March 13, 2023
- 2.Costs of the application awarded to the respondent
- On appeal from
- Environment and Land Court
- Jurisdiction invoked
- Rules 5(2)(b) and 42 of the Court of Appeal Rules, 2022
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Korir v Nakuru Joyteck Enterprises (Civil Application E021 of 2023) [2023] KECA 1215 (KLR)", Case Analysis (2023). Application dated March 13, 2023 (Court of Appeal, Nakuru). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/1215/eng@2023-10-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.