Apungu v Justinice Limited (Civil Application E218 of 2023) [2024] KECA 99 (KLR)
The bottom line
#Kenya's Court of Appeal stopped an eviction, holding that massive developments on the land meant money damages alone could not fairly compensate the buyer pending his appeal.
What this practically means
#Executive summary
#Key legal issues
#Whether the intended appeal is arguable
The appeal was held arguable on grounds including absence of Land Control Board consent and the doctrine of constructive trust, including whether an unpleaded issue may be raised or determined suo moto.
Both parties conceded no Land Control Board consent was obtained and took opposing views on constructive trust. The Court found that whether an unpleaded issue can be raised at any stage, or determined suo moto by a court, are issues deserving consideration. A single bona fide arguable ground suffices, and the grounds here were not frivolous.
Whether the appeal would be rendered nugatory absent stay
Yes. The massive, largely irreversible developments on the suit property meant damages would not adequately compensate the applicant, warranting preservation of the substratum of the appeal.
The Court reviewed annexures evidencing extensive developments on the suit property, which were not denied by the respondent. It held it insufficient for the respondent to merely offer compensation by damages, especially given its lack of candour about its financial capacity to compensate. Weighing the hardship of both parties, the Court found the prejudice to the applicant would be massive and almost irreversible if eviction proceeded before the appeal.
Legal principles established
#- To succeed on a rule 5(2)(b) application, an applicant must satisfy the twin tests of an arguable appeal and that the appeal will be rendered nugatory if the order sought is not granted; a single bona fide arguable ground suffices.
- On the nugatory limb, it is not enough for a respondent to assert that the applicant's loss is compensable by damages; the Court weighs the hardship of both parties and may preserve the substratum of the appeal where the prejudice is massive and nearly irreversible.
Court orders
#- 1.Stay of execution of the judgment and decree of the Environment and Land Court (Mwangi, J.) dated 23rd February 2023 granted pending hearing and determination of the intended appeal
- 2.Costs of the Motion to abide the outcome of the appeal
- On appeal from
- Environment and Land Court at Nairobi
- ELC Civil Suit No. 103 of 2019 (formerly HCCC No. 738 of 2003)
- Jurisdiction invoked
- Sections 3, 3A & 3B of the Appellate Jurisdiction Act and rules 5(2)(b) & 49 of the Court of Appeal Rules, 2022
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Attorney General & 3 others v Initiative & 3 others (Civil Application E155 of 2025) [2025] KECA 1847 (KLR)[2025] KECA 1847 (KLR)7 Nov 2025
Cite this brief
#Cite this brief
Caselaw, "Apungu v Justinice Limited (Civil Application E218 of 2023) [2024] KECA 99 (KLR)", Case Analysis (2024). Nairobi Civil Application (Notice of Motion dated 23rd May 2023) arising from intended appeal against Nairobi ELC Civil Suit No. 103 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/99/eng@2024-02-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.