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Court of AppealDismissedApplication dated March 13, 2023 (Court of Appeal, Nakuru)· [2023] KECA 1215 (KLR)

Korir v Nakuru Joyteck Enterprises (Civil Application E021 of 2023) [2023] KECA 1215 (KLR)

Court of Appeal of Kenya
6 October 2023
2,146 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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This is a ruling of the Court of Appeal at Nakuru (Ochieng, Achode and Korir, JJA) on an application dated March 13, 2023 brought under Rules 5(2)(b) and 42 of the Court of Appeal Rules, 2022. The applicant sought a stay of execution of a ruling of the Environment and Land Court (M Njoroge, J) dated January 30, 2023, and an injunction restraining the respondent from entering, selling, subdividing or advertising LR No Njoro/Ngata/Block 2/100, pending an intended appeal. The dispute arose from a charge over the suit property securing a loan from Post Bank Credit Limited; the property was sold at public auction, subdivided into 130 plots, and the applicant was evicted pursuant to an order dated February 24, 2023. The respondent opposed the application as frivolous and overtaken by events, since the applicant had already been evicted and the property was being transferred to a third party. The court restated the settled twin principles under Rule 5(2)(b): the applicant must demonstrate both an arguable appeal and that the appeal would be rendered nugatory absent stay, drawing on Stanley Kang'ethe Kinyanjui v Tony Keter. Holding that mere disgruntlement with the trial court's decision does not amount to an arguable appeal, and that the applicant had failed to show the appeal would be nugatory — particularly as he had already been evicted and the land was in the hands of non-parties who could not be condemned unheard — the court dismissed the application with costs to the respondent. The decision below was not disturbed; the ruling concerned only interim preservation pending an intended appeal.

Key legal issues

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01

Whether the intended appeal is arguable

Holding

The appeal was not arguable; the applicant only expressed dissatisfaction with the trial court's decision without raising bona fide arguable grounds.

Reasoning

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.

p. 5
02

Whether the appeal would be rendered nugatory without stay

Holding

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.

Reasoning

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.

p. 5
03

Twin principles under Rule 5(2)(b)

Holding

Both limbs must be satisfied; failure of either disposes of the application.

Reasoning

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.

p. 5

Legal principles established

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  • 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

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  1. 1.Dismissal of the application dated March 13, 2023
  2. 2.Costs of the application awarded to the respondent

Authorities

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Legislation

  • Court of Appeal Rules, 2022Rule 5(2)(b)
  • Court of Appeal Rules, 2022Rule 42
  • Court of Appeal RulesRule 75
  • Constitution of Kenyaright to own property (as invoked by the applicant)

Cases cited (14)

  • Stanley Kang'ethe Kinyanjui v Tony Keter & 5 Others
    [2013] eKLR
  • Attorney General v Okiya Omtata Okoiti & Another
    [2019] eKLR
  • Damji Pragji Mandavia v Sara Lee Household & Body Care (K) Limited
    Civil Application No 345 of 2004
  • Africa Eco-Camps Limited v Exclusive African Treasures Limited
    [2014] eKLR
  • Martin Kabaya v David Mungania Kiambi
    [2015] eKLR
  • West Kenya Company Limited v Luther Angatia
    [2018] eKLR
  • Ruben & 9 Others v Nderitu & Another
    [1989] KLR 459
  • Halai & Another v Thornton & Turpin [1963] Ltd
    [1990] KLR 365
  • David Morton Silverstein v Atsango Chesoni
    Civil Application No Nai 189 of 2001
  • Joseph Gitahi Gachau & Another v Pioneer Holdings (A) Ltd & 2 others
    Civil Application No 124 of 2008
  • Reliance Bank Ltd v Norlake Investments Ltd
    [2002] 1 EA 227
  • International Laboratory for Research on Animal Diseases v Kinyua
    [1990] KLR 403
  • Trust Bank Limited & Ano v Investech Bank Limited & 3 Others
    [2000] eKLR
  • Dennis Mogambi Mang'are v Attorney General & 3 others
    [2012] eKLR
On appeal from
Environment and Land Court
Jurisdiction invoked
Rules 5(2)(b) and 42 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, "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.