Solomon v Ogalo & 2 others (Civil Application E044 of 2023) [2024] KECA 312 (KLR)
The bottom line
#Kenya's Court of Appeal halted an eviction, confirming that appeals over land someone has lived on since 1986 will be protected pending hearing.
What this practically means
#Executive summary
#Key legal issues
#Arguability of the intended appeal
The intended appeal was arguable because the draft memorandum raised, among other grounds, the alleged shifting of the burden of proof by the trial court, touching on the right to property; a single arguable point suffices.
The court applied the Kinyanjui v Ketter formulation: an arguable appeal need not succeed but must not be frivolous. Being a first appeal, the applicant had a wide field covering fact and law. The complaint that the trial court shifted the burden of proof onto him, implicating the right to property, was enough to satisfy the arguability threshold without expressing any view on eventual merits.
Whether the appeal would be rendered nugatory absent stay
Yes. The applicant had occupied and developed the suit land since 1986 as his home and livelihood, execution by eviction would be irreversible, and damages would not adequately compensate; the respondent showed no prejudice.
The court reasoned that reversibility is the main issue: eviction from developed land occupied since 1986, which is the applicant's home and sole source of income, would not be reversible nor adequately compensated by damages. The respondent did not challenge the applicant's averments beyond denial, and the court held that the mere fact of seeking stay evidenced a genuine apprehension of imminent execution that could not be dismissed.
Legal principles established
#- An arguable appeal need not be one that will succeed; it suffices that it is not frivolous and deserves full argument, and a single arguable point is enough.
- A single arguable point is sufficient to establish the arguability limb of a rule 5(2)(b) application.
- In assessing nugatory-ness, the reversibility of what is sought to be stayed is the main consideration; if irreversible and damages cannot adequately compensate, the appeal may be rendered nugatory.
- Stay orders under rule 5(2)(b) preserve the subject matter of the intended appeal, and a genuine apprehension of imminent execution suffices without proof that execution will actually occur.
Court orders
#- 1.Notice of motion dated 5th September 2023 allowed
- 2.Stay of execution of the judgment in Kitale E&LC Case No. 41 of 2016 pending the hearing and determination of the applicant's intended appeal
- 3.Costs of the application and of the suit to abide the determination of the intended appeal
- On appeal from
- Environment & Land Court, Kitale
- Petition No. 41 of 2016
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Solomon v Ogalo & 2 others (Civil Application E044 of 2023) [2024] KECA 312 (KLR)", Case Analysis (2024). Civil Application No. E123 of 2023 (inferred from motion; not expressly stated). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/312/eng@2024-03-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.