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Case Brief · caselaw.co.ke
Court of AppealDismissedNot stated in the judgment (Notice of Motion dated 21st August 2023)· [2023] KECA 1567 (KLR)

James Karimi Waiganjo v Langata Realty Limited & 1 other

Court of Appeal of Kenya
19 December 2023
1,096 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 heading to judgment, ruling the applicant can still appeal whatever the trial judge decides.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Nairobi (Ole Kantai, Mumbi Ngugi and Gachoka, JJA) delivered on 19th December 2023 on a Notice of Motion dated 21st August 2023 brought under rule 5(2)(b) of the Court of Appeal Rules. The applicant, a defendant in Nairobi ELC Case No. 195 of 2017 before Mboya, J., sought a stay of the orders of 27th July 2023 by which the trial judge rejected a second adjournment application (the applicant's witness, the Land Registrar, was again absent), closed the applicant's case on his counterclaim, and directed the parties to file and exchange written submissions. Leave to appeal had been granted and a notice of appeal filed. The 2nd respondent opposed, arguing that the order was a negative order incapable of being stayed and that the appeal was neither arguable nor nugatory. The court first held that the order was not purely negative, since it contained directions the parties had to comply with, and was therefore capable of being stayed at least in part. It then found two grounds of the intended appeal arguable, namely the propriety of the judge's discretion and the alleged breach of the right to a fair hearing under article 50 of the Constitution, while stressing that an arguable ground need not succeed. On the nugatory limb, however, the court held that with judgment pending the applicant could appeal against the judgment itself if he lost, so the intended appeal would not be rendered nugatory. The application was accordingly dismissed with costs to the 2nd respondent.

Key legal issues

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01

Whether an order partly negative in character is incapable of being stayed

Holding

The court rejected the submission that the order was entirely negative; because it contained directions for filing and exchange of submissions, it was capable of being stayed at least in part.

Reasoning

The court perused the trial court's order and found that, beyond dismissing the adjournment application, the judge made positive directions requiring the parties to file and exchange written submissions. A direction requiring compliance by parties is a positive act capable of being stayed. The 2nd respondent's argument that the order, at least in part, was not capable of being stayed was therefore rejected.

p. 2
02

Whether the grounds of the intended appeal are arguable

Holding

The grounds questioning the judge's denial of the adjournment and the alleged denial of the right to a fair hearing under article 50 of the Constitution were arguable, though their ultimate success was left to the appeal bench.

Reasoning

The court examined the memorandum of appeal and identified two questions as arguable: whether the judge exercised his discretion properly in denying the adjournment, and whether the applicant was denied a fair hearing under article 50. The court stressed that an arguable ground need not necessarily succeed and declined to prejudge the appeal.

p. 3
03

Whether the intended appeal would be rendered nugatory absent a stay of proceedings

Holding

The appeal would not be rendered nugatory because judgment was pending and either party would retain a right of appeal against it.

Reasoning

It was common ground that the hearing had concluded and judgment was set for 27th October 2023. The court reasoned that if the applicant succeeded at trial the appeal would be unnecessary, and if he lost he could challenge the judgment even on the same grounds raised in the application. The nugatory limb of the test therefore failed and the application could not succeed.

p. 3

Legal principles established

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  • A trial court order that combines a dismissal of an adjournment application with positive directions (such as filing and exchange of submissions) is not a purely negative order and is capable of being stayed to the extent of its positive directions.
  • For stay of orders to issue, the applicant must demonstrate that the appeal or intended appeal would, in the absence of stay, be rendered nugatory.
  • An arguable ground of appeal need not be one that must necessarily succeed at the hearing of the appeal.
  • Where the trial court's judgment is pending and the losing party will in any event have a right of appeal, a stay of proceedings will not be granted merely because the intended appeal may become academic.

Court orders

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  1. 1.Dismissal of the Notice of Motion dated 21st August 2023
  2. 2.Costs of the application to the 2nd respondent
On appeal from
Environment and Land Court, Nairobi
ELC Case No. 195 of 2017
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, "James Karimi Waiganjo v Langata Realty Limited & 1 other", Case Analysis (2023). Not stated in the judgment (Notice of Motion dated 21st August 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/1567/eng@2023-12-19

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