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Court of AppealDismissedNotice of Motion dated 11th July, 2023 (rule 5(2)(b) application)· [2024] KECA 17 (KLR)

Suri v Kaur alias Mandeep Kaur (Civil Appeal (Application) E540 of 2023) [2024] KECA 17 (KLR)

Court of Appeal of Kenya
25 January 2024
ASAsike-MakhandiaKMK. M'inotiMNMumbi Ngugi
1,671 words in judgment
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The bottom line

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The Court of Appeal refused to pause a Kshs 22 million land judgment, confirming that an arguable appeal alone is not enough to get a stay in Kenya.

What this practically means

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Executive summary

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The applicant, Avtar Singh Suri, moved the Court of Appeal under rule 5(2)(b) of its Rules for stay of execution of a judgment of the Environment and Land Court (Oguttu Mboya, J) dated 7th June 2023, which directed him to pay the respondent Kshs 22,078,207.00 with interest at 14% per annum for accumulated rent arrears, and to subdivide LR No 427/44 into two and transfer one portion to the respondent within 60 days. The applicant had filed a notice of appeal arguing that the trial court granted unpleaded reliefs, relied on documents not formally produced, and awarded sums in excess of the pleaded claim. On the nugatory limb, he contended that subdivision and transfer would place the property beyond his reach and that the respondent, a foreigner not ordinarily resident in Kenya, might be unable to refund the decretal sum. The respondent opposed, relying on Bashir Haii Abdullahi v Adan Mohammed Nooru, contending the memorandum of appeal violated rule 88(1) and that the appeal was neither arguable nor nugatory; she alternatively sought half the decretal sum paid over and the other half deposited in a joint interest-earning account. The Court, comprising Asike-Makhandia, M'inoti and Ngugi, JJA, restated the twin principles from Trust Bank v Investech Bank and Stanley Kang'ethe Kinyanjui v Tony Ketter: an applicant must satisfy both arguability and nugatory impact. It found the intended appeal arguable but held the nugatory limb failed, since the applicant would retain half the suit property and his fears lacked evidentiary support. The application was dismissed with costs to abide the outcome of the appeal. The decision below was not disturbed.

Key legal issues

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01

Whether the intended appeal was arguable

Holding

The intended appeal was arguable on grounds including whether the trial court relied on documents not formally produced and granted unpleaded reliefs and excess quantum

Reasoning

The Court applied the test that a single bona fide arguable ground suffices. It found arguable grounds regarding documents not properly tendered, reliefs not prayed for, and the quantum of Kshs 22,078,207.00 which exceeded the pleaded amount. However, arguability alone is insufficient.

p. 3
02

Whether the appeal would be rendered nugatory if stay was not granted

Holding

The applicant failed on the nugatory limb; the fear of the property being put beyond his reach was unfounded as he would retain half the property

Reasoning

The Court noted the parties are related and the ownership of a portion of the property was not seriously contested, only the quantum. Uncontroverted consents recorded in prior court proceedings as to ownership and part payment of rent weighed against the claim of irreparable prejudice. No evidence supported the claim that execution would place the property beyond the applicant's reach.

p. 4

Legal principles established

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  • An applicant under rule 5(2)(b) must satisfy both the arguability and nugatory-impact limbs; failure on either is fatal to the application
  • An arguable appeal need not necessarily succeed; it is one that is not frivolous and ought to be argued fully
  • An appeal is rendered nugatory where what is sought to be stayed is irreversible, or where it is irreversible only if damages would not reasonably compensate the aggrieved party
  • A court hearing a rule 5(2)(b) application must not make definitive or final findings of fact or law

Court orders

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  1. 1.The application for stay of execution of the judgment and decree of the Environment and Land Court dated 7th June 2023 is dismissed
  2. 2.Costs shall abide the outcome of the appeal

Authorities

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Legislation

  • Court of Appeal RulesRule 5(2)(b)
  • Court of Appeal RulesRule 88(1)

Cases cited (3)

  • Bashir Haii Abdullahi v Adan Mohammed Nooru & 3 others
    [2014] eKLR
  • Trust Bank Limited & another v Investech Bank Limited & 3 others
    [2000] eKLR
  • Stanley Kang'ethe Kinyanjui v Tony Ketter & 5 others
    [2013] eKLR
On appeal from
Environment and Land Court (High Court)
Not stated
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules

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, "Suri v Kaur alias Mandeep Kaur (Civil Appeal (Application) E540 of 2023) [2024] KECA 17 (KLR)", Case Analysis (2024). Notice of Motion dated 11th July, 2023 (rule 5(2)(b) application). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/17/eng@2024-01-25

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