Adanjo & another v Omeno (Civil Appeal (Application) E091 of 2023) [2024] KECA 401 (KLR)
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the applicants demonstrated that their appeal is arguable under Rule 5(2)(b)
- 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.Whether the declaratory and conveyancing orders of the superior court are capable of execution such that a stay is warranted
Key legal issues
#Arguability of the appeal
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
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.
Nugatory value - money decree versus transfer of land
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
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.
Legal principles established
#- 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
#- 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.The other aspects of the judgment, including the order for payment of costs reflected in the Certificate of Costs, are not stayed
- 3.Each party to bear its own costs of the application
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- 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
#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
Stay of the declaratory orders (a) to (d) of the judgment
Declaratory orders are incapable of execution at this stage
Costs
Each party shall bear its own costs of the application.
Quotable passages
#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.
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.
Given our disposition, each party shall bear its own costs.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Omeno v Andajo & another (Environment & Land Case 3 of 2022) [2024] KEELC 5921 (KLR)[2024] KEELC 5921 (KLR)19 Sept 2024
Cite this brief
#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.