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Court of AppealAllowedCivil Application (Court of Appeal, Kisii)

Wereh & another v County Government of Bungoma & 4 others (Civil Application E196 of 2023) [2024] KECA 133 (KLR)

Court of Appeal of Kenya
9 February 2024
HOHannah OkwenguHOH.A. OmondiJNJoel Ngugi
1,755 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 land-case proceedings in Bungoma because continuing them would have made the planned appeal pointless.

What this practically means

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Executive summary

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This was a single-judge-panel application under Rule 5(2)(b) of the Court of Appeal Rules, 2010, before Okwengu, Omondi and Ngugi, JJ.A at Kisii, seeking a stay of further proceedings in Bungoma ELC Petition E004 of 2021 pending the applicants' intended appeal. The applicants, co-administrators of the estate of the late Abdallah Wambwere, had obtained an ex parte judgment from Olao, J on 21st February 2022 in a petition seeking declarations, mesne profits and a mandatory injunction over a slaughterhouse on land parcel Kimilili/Kimilili/7397, whose 1990 compulsory acquisition by the defunct Town Council of Kimilili was allegedly uncompensated. Cherono, J on 12th May 2023 set aside that ex parte judgment and allowed the County Government of Bungoma time to respond. The applicants contended this amounted to the court sitting on appeal over its own decision, Olao, J having on 12th January 2022 already declined to grant the respondent more time. The court applied the twin rule 5(2)(b) principles. On arguability, it found the question whether it was proper to set aside a judgment entered after failure to file submissions was arguable. On nugatory-ness, it held that continuation of the trial proceedings would render the appeal academic, since the appeal challenges the legality of those very proceedings. The application was allowed, with costs to abide the main appeal.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Applicants have satisfied the requirements necessary for granting an order for stay of proceedings under rule 5(2)(b), namely that the appeal is arguable and that it would be rendered nugatory if stay is not granted

Key legal issues

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01

Arguability of the intended appeal

Holding

The intended appeal is arguable because it raises a serious question whether the trial court properly set aside an ex parte judgment entered after the respondent failed to file submissions, including whether there was inordinate delay.

Reasoning

Relying on Wasike v Swala, Transouth Conveyors and KCB v Nicholas Ombija, the court held that an arguable appeal is one that merits full argument, not one that must succeed. The memorandum of appeal raised one issue - inordinate delay in seeking setting aside - which is sufficient and is a serious point of law deserving consideration by the court.

p. 3
02

Whether the appeal would be rendered nugatory

Holding

Because the appeal challenges the legality of the trial proceedings themselves, allowing those proceedings to continue would render the appeal academic; stay of proceedings was therefore necessary.

Reasoning

Applying the nugatory test from Stanley Kang'ethe Kinyanjui v Tony Ketter - reversibility of what is sought to be stayed and adequacy of damages - the court found that continuation of the petition would render the appeal an academic exercise, since the core of the appeal challenges the legality of the superior court proceedings in the first instance.

p. 4

Legal principles established

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  • The twin principles for stay of proceedings under rule 5(2)(b) are that the appeal must be arguable and that it must be likely to be rendered nugatory if stay is not granted; the same principles apply to injunctions, stay of execution and stay of proceedings.
  • An arguable appeal need not succeed on a multiplicity of issues; a single serious issue of law worthy of consideration suffices.
  • An appeal challenging the legality of proceedings in the trial court will be rendered nugatory if those proceedings continue, warranting a stay of further proceedings.

Court orders

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  1. 1.Stay of any further proceedings in Bungoma ELC Petition E004 of 2021 pending the hearing and determination of the intended appeal
  2. 2.Costs shall abide the main appeal

The bench

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One judgment of the whole court — no separate or dissenting opinions.

HO
majority
HO
majority
JN
majority
On appeal from
Environment and Land Court, Bungoma
Bungoma ELC Petition E004 of 2021
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules, 2010

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Whether or not an appeal will be rendered nugatory depends on whether or not what is sought to be stayed if allowed to happen is reversible; or if it is not reversible whether damages will reasonably compensate the party aggrieved.
p. 4Nugatory test under rule 5(2)(b)
An arguable appeal is not one which must necessarily succeed, but one which ought to be argued fully before the court.
p. 3Meaning of arguable appeal
Thus bearing in mind that the nugatory aspect is pegged on whether or not what is sought to be stayed or halted by an order of injunction, if allowed to happen is reversible; or if not whether damages will reasonably compensate the parties aggrieved
p. 4Application of the nugatory test
Accordingly, the application is allowed cost shall abide the main appeal.
p. 4Final orders - disposition

Issues in the judgment

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minor

Typographical errors in the judgment: 'sufice' for 'suffice', 'trifiing' for 'trifling', and the order granting setting-aside is described as 'dated 27th February 2023' but granted in 'an order dated 17th March 2021', an apparent dating error.

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, "Wereh & another v County Government of Bungoma & 4 others (Civil Application E196 of 2023) [2024] KECA 133 (KLR)", Case Analysis (2024). Civil Application (Court of Appeal, Kisii). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/133/eng@2024-02-09

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