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Court of AppealDismissedApplication by notice of motion dated 30th August 2023 (appeal against Nanyuki ELC Case No. E009 of 2022)· [2024] KECA 256 (KLR)

Waweru v Njeru (Suing as the Attorney of Patrick Gitonga Nyaga) (Civil Appeal (Application) E109 of 2023) [2024] KECA 256 (KLR)

Court of Appeal of Kenya
8 March 2024
1,329 words in judgment
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The bottom line

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The Court of Appeal refused to pause the Nanyuki land judgment against Waweru because he failed to show his appeal had any arguable issue.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Nairobi (Karanja, Kimaru and Muchelule, JJ.A) dated 8th March 2024 on a notice of motion dated 30th August 2023 brought under Rule 5(2)(b) of the Court of Appeal Rules, 2022, seeking stay of execution of the judgment and decree of the Environment and Land Court at Nanyuki (K. Bor, J.) delivered on 26th April 2023. The ELC found John Kenneth Njeru, suing as attorney of Patrick Gitonga Nyaga, the registered proprietor of Nanyuki Municipality Block II/33, and granted a permanent injunction against Peter Maina Waweru, awarding general damages of Kshs.100,000, special damages of Kshs.285,314 and costs. Waweru's claim rested on a letter of allotment dated 23rd October 1992 which the ELC found he accepted only on 8th February 2019, long after the offer had expired and after the property had been surveyed, registered and sold to Nyaga. Before the Court of Appeal, the applicant argued the appeal was arguable because the judge failed to interrogate the root of the respondent's title, and that he would seek to adduce a newly obtained certificate of lease. The court applied the settled dual test: an applicant must show both that the intended appeal is arguable and that it will be rendered nugatory if stay is not granted. Holding that the respondent had a certificate of registration while the applicant relied on an unfulfilled letter of allotment, the court found arguability not demonstrated and, without considering the nugatory limb, dismissed the application with costs to the respondent. The ELC judgment and decree therefore stand undisturbed, and execution may proceed.

Key legal issues

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01

Whether the intended appeal was arguable

Holding

Arguability was not demonstrated. On the face of the record, the respondent backed his claim with a certificate of registration while the applicant relied on a letter of allotment whose terms he had not honoured.

Reasoning

The court, though not the court to hear the appeal, examined the rival ownership claims. The respondent's title rested on a registered certificate of lease traced through registered proprietors, whereas the applicant's claim rested on a 1992 letter of allotment whose offer had expired without acceptance or payment of the required sum. A single bona fide issue would have sufficed, but none was shown, as the applicant essentially accepted an offer of property no longer available for allotment.

p. 3
02

Whether the appeal would be rendered nugatory if stay was not granted

Holding

The court declined to determine this limb because the applicant had failed the arguability limb; both limbs of the Rule 5(2)(b) test must be satisfied.

Reasoning

Since the law requires an applicant to demonstrate both that the appeal is arguable and that it will be rendered nugatory if stay is not granted, failure on the first limb disposes of the application without consideration of the second. The court did not therefore make any finding on whether the decretal damages and costs could be repaid if the appeal succeeded.

p. 3

Legal principles established

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  • An applicant under Rule 5(2)(b) must satisfy both the arguability and the nugatory-appeal limbs; both considerations must be met.
  • An arguable appeal need not be one that must succeed; it suffices that it raises even one bona fide issue deserving full consideration by the Court.

Court orders

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  1. 1.Dismissal of the notice of motion dated 30th August 2023 seeking stay of execution
  2. 2.Costs of the application to the respondent

Authorities

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Legislation

  • Court of Appeal Rules, 2022Rule 5(2)(b)

Cases cited (4)

  • Stanley Kangethe Kinyanjui v Tony Keter & 5 Others
    [2013] eKLR
  • J.K. Industries Ltd v Kenya Commercial Bank Ltd
    [1982 – 98] KAR 1088
  • Republic v Kenya Anti-Corruption Commission & 2 Others
    [2009] KLR 31
  • Kenya Railway Corporation v Edermann Properties Ltd
    EA. No. Nai 176 of 2012
On appeal from
Environment and Land Court at Nanyuki
Nanyuki ELC Case No. E009 of 2022
Jurisdiction invoked
Rule 5(2)(b) 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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Cite this brief

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Cite this brief

Caselaw, "Waweru v Njeru (Suing as the Attorney of Patrick Gitonga Nyaga) (Civil Appeal (Application) E109 of 2023) [2024] KECA 256 (KLR)", Case Analysis (2024). Application by notice of motion dated 30th August 2023 (appeal against Nanyuki ELC Case No. E009 of 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/256/eng@2024-03-08

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