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Court of AppealPartially AllowedNairobi Civil Application (Notice of Motion dated 23rd May 2023) arising from intended appeal against Nairobi ELC Civil Suit No. 103 of 2019· [2024] KECA 99 (KLR)

Apungu v Justinice Limited (Civil Application E218 of 2023) [2024] KECA 99 (KLR)

Court of Appeal of Kenya
9 February 2024
3,257 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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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

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Executive summary

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Arthur K. Apungu, aggrieved by the judgment of the Environment and Land Court at Nairobi (Mwangi, J.) delivered on 23rd February 2023 in ELC Civil Suit No. 103 of 2019 - which had allowed the respondent's counterclaim, declared it owner of the suit property and ordered his eviction - moved the Court of Appeal by a Notice of Motion dated 23rd May 2023 under sections 3, 3A and 3B of the Appellate Jurisdiction Act and rules 5(2)(b) and 49 of the Court of Appeal Rules, seeking stay of execution pending the lodgment, hearing and determination of his intended appeal. The applicant had in 1999 signed a sale agreement for the suit property, paid a deposit, taken possession and made extensive developments over more than two decades; the sale agreement was, however, found by the trial court to be void for want of Land Control Board consent. The respondent opposed, asserting non-disclosure, rescission and refund of the deposit, and that any loss was compensable in damages. In a single judgment of the court, the bench (Murgor, Laibuta and Ngenye-Macharia, JJA) restated the twin rule 5(2)(b) tests: an arguable appeal and the nugatory principle. It found the intended appeal arguable on the Land Control Board consent issue, the applicability of constructive trust, and whether an unpleaded issue may be raised or determined suo moto. On the nugatory limb, the Court held that massive developments on the property, which were not denied, meant damages would not suffice, especially given the respondent's lack of candour on its financial capacity to compensate. Both limbs were satisfied. The Court granted stay of execution of the trial court's judgment and decree pending hearing and determination of the intended appeal, with the costs of the Motion to abide the outcome of the appeal.

Key legal issues

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01

Whether the intended appeal is arguable

Holding

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.

Reasoning

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.

p. 5
02

Whether the appeal would be rendered nugatory absent stay

Holding

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.

Reasoning

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.

p. 6

Legal principles established

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  • 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

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  1. 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. 2.Costs of the Motion to abide the outcome of the appeal

Authorities

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Legislation

  • Appellate Jurisdiction ActSections 3, 3A & 3B
  • Court of Appeal Rules, 2022Rule 5(2)(b)
  • Court of Appeal Rules, 2022Rule 49
  • Court of Appeal RulesRule 75 (as referenced in Kinyanjui principles)

Cases cited (19)

  • Duncan Nduracha v Faud Mohammed & 2 Others
    [2011] eKLR
  • Aliaza v Saul (Civil Appeal 134 of 2017)
    [2022] KECA 583 (KLR)
  • Gulf Timber & Hardware Supplies Limited v Ngaruiya & 5 Others (February 2022) (Ruling) (with dissent - S ole Kantai, JA)
  • Wensley Barasa v Immaculate Awino Abongo
    (2016) eKLR
  • Willy Kimutai Kitilit v Michael Kibet
    [2018] eKLR
  • Bahadurali Ebrahim Shamji v Al Noor Jamal & 2 Others
    [1998] eKLR
  • Stanley Kang'ethe Kinyanjui v Tony Keter & 5 Others
    [2013] eKLR
  • Kenya Revenue Authority v Evelyne Onyango Obondo
    [2021] eKLR
  • Stanley Kangethe Kinyanjui v Tony Ketter & 5 others
  • 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
  • Reliance Bank Ltd v Norlake Investments Ltd
    [2002] 1 EA 227
  • International Laboratory for Research on Animal Diseases v Kinyua
    [1990] KLR 403
  • Dennis Mogambi Mang'are v Attorney General & 3 others
    [2012] eKLR
  • Re: Estate of Harish Chandra Hindocha (Deceased)
    [2021] eKLR
  • African Safari Club Limited v Safe Rentals Limited
    [2010] eKLR
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

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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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.