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Court of AppealDismissedCivil Application No. E112 of 2023 (as stated in the judgment only as a notice of motion dated 2nd June 2023)· [2024] KECA 57 (KLR)

Emily Waleiaora v David Kuria Njoroge

Court of Appeal
2 February 2024
1,495 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 refused to stop an eviction because an evicted landowner who later wins her appeal can simply be paid damages instead.

What this practically means

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Executive summary

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This is a single-judgment decision of the Court of Appeal at Nakuru (Sichale, Nyamweya and Korir, JJ.A) dismissing an application for stay of execution pending appeal. The applicant, Emily Waleiaora, sought to stay the decree and eviction orders arising from the judgment of M. Njoroge J. in Kitale Environment and Land Court Case No. 83 of 2017, delivered on 9th October 2019, in which the respondent, David Kuria Njoroge, obtained ownership of the suit land and an eviction order against her. She argued her intended appeal on the applicability of adverse possession was arguable and would be rendered nugatory because the decree had been extracted and an eviction order served on the OCS Kwanza Police Station, awaiting approval from the Inspector General of Police. The respondent opposed, contending the ownership question was res judicata and that the applicant's possession was in disobedience of a court order. Both parties relied on Stanley Kangethe Kinyanjui v Tony Ketter & 5 others. The court found the adverse possession issue arguable, holding that even a single arguable ground suffices. However, it held that imminent execution alone does not justify a stay: eviction is reversible and compensable in damages, the property could be valued even if disposed of, and a deserving winning party should enjoy the fruits of judgment. The application was dismissed, with costs abiding the outcome of the pending appeal.

Key legal issues

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01

Whether the intended appeal is arguable

Holding

The intended appeal is arguable because the applicability of adverse possession to the ownership dispute could warrant the Court's reconsideration.

Reasoning

The court examined the memorandum of appeal against the impugned judgment and identified the core issue as the applicability of the principle of adverse possession. It found this issue capable of deserving the Court's consideration, and reiterated that even a single arguable ground suffices to establish arguability. This limb therefore favoured the applicant.

p. 2
02

Whether the appeal will be rendered nugatory if stay is not granted

Holding

The appeal will not be rendered nugatory because eviction is reversible and compensable in damages, and the respondent is entitled to enjoy the fruits of his judgment.

Reasoning

The court held that imminent execution alone does not earn a stay; reversibility and adequacy of damages must be considered. If the applicant is evicted and the appeal later succeeds, she can be compensated in damages, and the property can be valued even if disposed of. The court also stressed preserving the ends of justice by letting a deservedly winning party enjoy the fruits of judgment.

p. 3

Legal principles established

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  • An applicant for stay of execution pending appeal under Rule 5(2)(b) must establish both that the appeal is arguable and that it will be rendered nugatory if stay is not granted.
  • A single arguable ground of appeal suffices to render an appeal arguable.
  • Demonstrating imminent execution alone is not enough for a stay; the court must also consider whether what is to be stayed is reversible or compensable in damages, and whether the decree-holder should enjoy the fruits of judgment.

Court orders

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  1. 1.The notice of motion dated 2nd June 2023 is found to be without merit and is dismissed
  2. 2.Costs of the application shall abide the outcome of the pending appeal
On appeal from
Environment and Land Court, Kitale
Kitale E&LC Case No. 83 of 2017
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules (stay of execution pending appeal before the Court of Appeal); the judgment does not expressly cite the provision

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, "Emily Waleiaora v David Kuria Njoroge", Case Analysis (2024). Civil Application No. E112 of 2023 (as stated in the judgment only as a notice of motion dated 2nd June 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/57/eng@2024-02-02

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