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Court of AppealAllowedCivil Application E021 of 2023· [2024] KECA 52 (KLR)

Waningilo v Baraza & another (Civil Application E021 of 2023) [2024] KECA 52 (KLR)

Court of Appeal of Kenya
2 February 2024
1,569 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal paused the enforcement of a land judgment because the appellant showed the appeal was worth hearing and that immediate enforcement would cause serious loss.

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 (Nyamweya, Ochieng and Korir, JJAA) on a notice of motion dated 19th May 2023 brought under rules 1(2), 5(2)(b) and 47 of the Court of Appeal Rules and article 159(2)(d) of the Constitution, seeking stay of execution of a judgment delivered on 11th August 2020 in Kitale Environment & Land Case No. 2 of 2019 pending an intended appeal. The impugned judgment ordered the applicant to vacate land known as Trans Nzoia/Ngoronga11, which he claimed to have possessed since 1985. The trial court had found that he breached a sale agreement with the respondents' father by failing to pay over Kshs. 224,000 of the agreed purchase price of Kshs. 500,000 and by refusing to grant possession of a Kitale site and service plot. The respondents opposed, contending the applicant was not in actual possession but leased the land to third parties for over Kshs. 500,000 yearly. The court restated the rule 5(2)(b) twin principles from Stanley Kang'ethe Kinyanjui v Tony Keter and related authorities: the applicant must show an arguable appeal and that the appeal would be rendered nugatory without stay. Holding that the ownership issue, intertwined with the alleged failure to grant possession of the Kitale plot, deserved a full hearing, and that the applicant would suffer significant loss given the rental income, the court found both limbs satisfied. It allowed the application, stayed execution pending the intended appeal, and ordered that costs abide the outcome of that appeal.

Key legal issues

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01

Twin principles for stay under rule 5(2)(b)

Holding

Applicant must establish an arguable appeal and that the appeal will be rendered nugatory if stay is refused.

Reasoning

The court restated the settled principles from Stanley Kang'ethe Kinyanjui v Tony Keter, including that a single bona fide arguable ground suffices, an arguable appeal need not necessarily succeed, and nugatory means more than worthless, extending to trifling. Both limbs must be satisfied before stay can issue.

p. 3
02

Whether the intended appeal was arguable

Holding

The issues of ownership of the suit land and the applicant's refusal to grant possession of the Kitale site and service plot deserved a full hearing, making the appeal arguable.

Reasoning

The court examined the draft memorandum of appeal and found the applicant faulted the trial court's finding of breach of the sale agreement. It held that the ownership issue, intertwined with the failure to grant possession of the Kitale plot, raised grounds deserving of full argument, without making final findings of fact or law.

p. 4
03

Whether the appeal would be rendered nugatory

Holding

The applicant would suffer significant loss if stay were refused, even though he was not in actual physical possession, since he leased the land and received benefits from it.

Reasoning

The respondents' claim that the applicant was not in actual possession was undisputed, but the court noted he leased the suit land to third parties and received benefits. Ordering him to vacate and prohibiting use would cause significant loss, and execution before the appeal would render its success nugatory.

p. 2

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.
  • The jurisdiction under rule 5(2)(b) is original, independent and discretionary, to be exercised judiciously, not on sympathy.

Court orders

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  1. 1.Execution of the judgment delivered on 11th August 2020 in Kitale Environment & Land Case No. 2 of 2019 is stayed pending the hearing and determination of the applicant's intended appeal
  2. 2.Costs shall abide the outcome of the intended appeal

Authorities

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Legislation

  • Court of Appeal Rulesrule 1(2)
  • Court of Appeal Rulesrule 5(2)(b)
  • Court of Appeal Rulesrule 47
  • Court of Appeal Rulesrule 75
  • Constitution of Kenya, 2010article 159(2)(d)

Cases cited (13)

  • Josephine Koki Raymond v Philomena Kanini Maingi (personal representative of Maingi Musila Mutava (Deceased) & another
    [2018] eKLR
  • Aguthi Enterprises Limited v Hussein Ibrahim Nuni
    [2015] eKLR
  • Stanley Kang'ethe Kinyanjui v Tony Keter & 5 Others
    [2013] eKLR
  • Kenya Tea Growers Association & another v Kenya Plantation and Agricultural Workers Union
    [2012] eKLR
  • Reliance Bank Limited v Norlake Investments Limited
    [2002] 1 EA 227
  • 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
  • Damji Pragji Mandavia v Sara Lee Household & Body Care (K) Ltd
    Civil Application No. Nai 345 of 2004
  • Joseph Gitahi Gachau & Another v Pioneer Holdings (A) Ltd & 2 others
    Civil Application No. 124 of 2008
  • International Laboratory for Research on Animal Diseases v Kinyua
    [1990] KLR 403
  • Trust Bank Limited & Another 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, Kitale
Kitale Environment & Land Case No. 2 of 2019
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules and article 159(2)(d) of the Constitution

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, "Waningilo v Baraza & another (Civil Application E021 of 2023) [2024] KECA 52 (KLR)", Case Analysis (2024). Civil Application E021 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/52/eng@2024-02-02

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