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Court of AppealPartially AllowedApplication dated 28th September 2023, arising from Kisumu ELC Case No. 48 of 2018

Adanjo & another v Omeno (Civil Appeal (Application) E091 of 2023) [2024] KECA 401 (KLR)

Court of Appeal
26 April 2024
1,869 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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The Court of Appeal stopped the transfer of disputed land pending appeal, but the losing party must still pay the awarded costs now.

What this practically means

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Executive summary

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This was a Rule 5(2)(b) application by the defendants in Kisumu ELC Case No. 48 of 2018 seeking a stay of execution of the Environment and Land Court's judgment of 13th May 2021, which declared that the respondent had acquired Plot No. 3 Bondo Township by adverse possession and ordered its transfer to him. The applicants warned that execution would render their pending appeal nugatory and that their business premises worth Kshs. 4,500,000 faced demolition. The respondent opposed, arguing that no draft memorandum of appeal was attached to demonstrate arguability, and that the stay sought related mainly to a money decree for taxed costs which could be refunded. The Court of Appeal (Okwengu, Omondi and Ngugi, JJ.A) applied the twin tests from Stanley Kang'ethe Kinyanjui v Tony Keter: arguability and nugatory value. It found the appeal arguable on whether a new lease extinguishes adverse possession over the original lease and on alleged co-possession. On nugatory value, it held that the taxed costs, being a money decree, could not render the appeal nugatory absent proof of inability to refund, and that declaratory orders (a) to (d) were incapable of execution. However, orders (e) and (f), compelling transfer of the property or execution by the Deputy Registrar, could pass title to the respondent and possibly third parties, so a stay was warranted to preserve the substratum of the appeal. The application was allowed only in that limited respect, with the costs order left unstayed and each party bearing its own costs.

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 demonstrated that their appeal is arguable under Rule 5(2)(b)
  2. 2.Whether the appeal would be rendered nugatory absent a stay of execution, including whether a money decree (taxed costs) can render an appeal nugatory
  3. 3.Whether the declaratory and conveyancing orders of the superior court are capable of execution such that a stay is warranted

Key legal issues

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01

Arguability of the appeal

Holding

The appeal was arguable on the questions whether a new lease extinguishes adverse possession over the original lease and whether co-possession defeats adverse possession

Reasoning

The applicants contested the superior court's holding that adverse possession straddles the old and new leases, and pointed to evidence of co-possession by the 2nd applicant. Exercising their right of first appeal, these issues were held to be bona fide arguable points rather than frivolous ones, satisfying the first limb of the Rule 5(2)(b) test.

p. 4
02

Nugatory value - money decree versus transfer of land

Holding

The taxed costs decree could not render the appeal nugatory, but the transfer and registration orders (e) and (f) could, since registration could pass title to the respondent and then to third parties

Reasoning

The court examined the superior court's orders and distinguished the declaratory orders (a) to (d), incapable of execution, from the mandatory orders (e) and (f) compelling transfer of the Suit Property or execution by the Deputy Registrar. Those latter orders could effectuate a change of ownership before the appeal was heard, threatening the substratum of the appeal, justifying a limited stay.

p. 4

Legal principles established

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  • An application under Rule 5(2)(b) requires the applicant to satisfy the twin principles of an arguable appeal and that the appeal would be rendered nugatory absent the orders sought
  • An arguable appeal need not have a high probability of success; it is one that is not frivolous and merits full argument
  • Satisfaction of a money decree will not ordinarily render an appeal nugatory absent credible demonstration that the judgment-creditor cannot refund

Court orders

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  1. 1.Stay of execution granted only against orders (e) and (f) of the judgment dated 13th May, 2021 (the orders compelling transfer of the Suit Property and, in the alternative, directing the Deputy Registrar to sign the transfer forms)
  2. 2.The other aspects of the judgment, including the order for payment of costs reflected in the Certificate of Costs, are not stayed
  3. 3.Each party to bear its own costs of the application

The bench

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

majority
majority
majority
On appeal from
Environment and Land Court
Kisumu ELC Case No. 48 of 2018
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules

Relief refused

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Stay of execution in respect of taxed costs (money decree)

A money decree does not ordinarily render an appeal nugatory and no inability to refund was demonstrated

p. 4

Stay of the declaratory orders (a) to (d) of the judgment

Declaratory orders are incapable of execution at this stage

p. 4

Costs

Each party shall bear its own costs of the application.

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.

The upshot is that we allow the notice of motion dated 28th September, 2023 only to the limited extent that there shall be an order of stay only against orders (f) and (e) of the judgment dated 13th May, 2021.
p. 4Disposition - limited stay granted
For the avoidance of doubt, the other aspects of the judgment – including the order for payment of costs which is now reflected in the Certificate of Costs – are not stayed.
p. 4Scope of stay
Given our disposition, each party shall bear its own costs.
p. 4Costs

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, "Adanjo & another v Omeno (Civil Appeal (Application) E091 of 2023) [2024] KECA 401 (KLR)", Case Analysis (2024). Application dated 28th September 2023, arising from Kisumu ELC Case No. 48 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/401/eng@2024-04-26

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