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Court of AppealAllowedApplication dated 30th October 2023 (Civil Application, rule 5(2)(b))· [2024] KECA 369 (KLR)

Maina & another v Passaris & another (Civil Application E502 of 2023) [2024] KECA 369 (KLR)

Court of Appeal of Kenya
12 April 2024
874 words in judgment
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The bottom line

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Kenya's Court of Appeal paused the forced sale of a Nairobi property, freezing everyone's position until the owners' appeal is heard.

What this practically means

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Executive summary

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By an application dated 30th October 2023 under rule 5(2)(b) of the Court of Appeal Rules, Charles Kanyuga Maina and Grace Wanjiku Kanyuga sought a stay of execution of the judgment of the Environment and Land Court (Komingoi, J.) delivered on 12th October 2023 in ELC Case No. 1256 of 2014. That judgment declared that Esther Muthoni Passaris had the right, on payment of Kshs. 35,000,000, to purchase LR No. 7741/75 from the estate of Kuttar Singh Hansal through Alka Roshanlal Hansal; declared the applicants' sale and transfer null and void; directed cancellation of their registration; and compelled execution of a transfer to the 1st respondent. The applicants, registered proprietors since 2014 who claimed to have paid Kshs. 100,000,000, argued the intended appeal was arguable on the enforceability of an option to purchase contained in an unregistered lease. The 2nd respondent supported the application, while the 1st respondent, in occupation since 2006, opposed it. Applying the principles in Stanley Kangethe Kinyanjui v Tony Ketter, the Court found the intended appeal arguable and, balancing the applicants' risk of irreversible loss against the 1st respondent's continuous possession, held matters where they are. The Court allowed the application, staying execution of the ELC judgment pending the hearing and determination of the appeal, with costs of the application to be costs in the appeal.

Key legal issues

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01

Arguability of the intended appeal

Holding

The intended appeal is arguable, including on whether the ELC erred in upholding the enforceability of an option to purchase under an unregistered lease.

Reasoning

The Court applied the principles in Stanley Kangethe Kinyanjui v Tony Ketter, noting that a single arguable point suffices. It identified the enforceability of the option to purchase in an unregistered lease and questions concerning execution of the lease as bona fide issues for the appeal, without determining their merits at this interlocutory stage.

p. 2
02

Nugatory value and preservation pending appeal

Holding

The Court exercised its discretion to preserve the status quo: the 1st respondent's possession is not disturbed and the property is not transferred during the pendency of the appeal.

Reasoning

Weighing the 1st respondent's long continuous occupation since 2006 and substantial renovations against the applicants' risk of irreversible loss through cancellation of their title, the Court found the balance favoured holding matters where they are rather than allowing either party's position to be disturbed pending the appeal.

p. 2

Legal principles established

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  • An application for stay under rule 5(2)(b) requires demonstration that the intended appeal is arguable and that, absent a stay, it would be rendered nugatory; where both are satisfied, the Court may hold matters where they are pending the appeal.

Court orders

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  1. 1.A stay of execution of the judgment of the ELC in ELC Case No. 1256 of 2014 pending the hearing and determination of the applicants' appeal
  2. 2.Costs of the application to be costs in the appeal

Authorities

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Legislation

  • Court of Appeal Rulesrule 5(2)(b)

Cases cited (1)

  • Stanley Kangethe Kinyanjui vs. Tony Ketter & 5 others
    [2013] eKLR
On appeal from
Environment and Land Court
ELC Case No. 1256 of 2014
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules

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, "Maina & another v Passaris & another (Civil Application E502 of 2023) [2024] KECA 369 (KLR)", Case Analysis (2024). Application dated 30th October 2023 (Civil Application, rule 5(2)(b)). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/369/eng@2024-04-12

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