Soitara Ole Saoli v Paul Morombi Saoli (suing On His Own Behalf and As An Administrator of The Estate of Leposo Ole Saoli) & 2 others
The bottom line
#Kenya's Court of Appeal paused a land trial, ruling a 94-year-old litigant deserved the chance to challenge procedural irregularities before the case went to judgment.
What this practically means
#Executive summary
#Key legal issues
#Whether the intended appeal is arguable
The intended appeal was arguable because it raised at least one triable issue - the alleged infringement of the Applicant's constitutional right to a fair hearing if the trial proceeded on pleadings alleged to be a nullity and without his documents.
The Court reiterated that an arguable appeal need not succeed, provided it is not frivolous. A single triable issue suffices. The Applicant's contention that proceeding on an unsigned amended plaint, without leave to amend his defence and counterclaim or file compliance documents, would infringe his right to a fair hearing was enough to demonstrate an arguable appeal for purposes of the first limb of the Rule 5(2)(b) test.
Whether the appeal would be rendered nugatory if stay is not granted
The appeal would be rendered nugatory if the hearing in the trial suit proceeded to conclusion, since the Applicant would be compelled to go to trial based on pleadings alleged to be a nullity and would be unable to canvass his case fully; but the stay was made conditional on expeditious prosecution of the appeal.
Applying the nugatory test from Stanley Kang'ethe Kinyanjui v Tony Ketter, the Court weighed the Applicant's claim of miscarriage of justice against the Respondents' blame for delay. Finding it in the interests of justice to let the Applicant demonstrate whether the trial court denied him a full opportunity to canvass his case, the Court granted stay but, mindful of the delay, conditioned it on filing the record of appeal within 60 days, failing which the stay lapses automatically.
Legal principles established
#- This Court has discretion under Rule 5(2)(b) of the Court of Appeal Rules 2022 to grant an order of stay of further proceedings pending appeal; the applicant must demonstrate an arguable appeal and that the appeal would be rendered nugatory absent a stay.
- An arguable appeal need not necessarily succeed; it suffices if it is not frivolous and raises even one triable issue.
- Whether an appeal will be rendered nugatory depends on whether what is to be stayed, if allowed to happen, is reversible, or if not reversible, whether damages will reasonably compensate the aggrieved party.
Court orders
#- 1.A stay of further proceedings in Narok ELC No 264 of 2017 - Paul Morombi Saoli & 2 others v Soitara Ole Saoli be and is hereby granted pending the lodging, hearing and determination of the Applicant’s intended appeal against the ruling delivered therein on 7th February 2023
- 2.The Applicant herein shall file and serve his record of appeal of the said intended appeal in this Court within 60 days of today’s date, failing which the stay orders granted herein shall automatically lapse
- 3.Each party shall bear their own costs of the said application
- On appeal from
- Environment and Land Court, Narok
- Narok ELC No 264 of 2017 - Paul Morombi Saoli & 2 Others v Soitara Ole Saoli
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules 2022
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Soitara Ole Saoli v Paul Morombi Saoli (suing On His Own Behalf and As An Administrator of The Estate of Leposo Ole Saoli) & 2 others", Case Analysis (2023). Civil Application No. E079 of 2023 (Nakuru) [not stated in judgment; application dated 9th May 2023]. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/1536/eng@2023-12-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.