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Court of AppealDismissedCivil Application No. NAI of 2022 (as arising from ELC Case No. 25 of 2018)

Jane Njeri Karongo & Harrison Munga Karongo (Sued as the Legal Representatives of the Estate of Rongo Kiuri) & another v Karongo) (Civil Appeal (Application) E055 of 2022) [2024] KECA 416 (KLR)

Court of Appeal
26 April 2024
1,924 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal refused to stop execution of a land ruling, punishing the applicants for disobeying court orders and hiding earlier applications.

What this practically means

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Executive summary

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This was a Notice of Motion dated 4th February 2022 brought under rules 5(2)(b) and 47 of the Court of Appeal Rules seeking stay of execution of a ruling of Okong'o J in ELC Case No. 25 of 2018 delivered on 27th January 2022. The background was a judgment of 30th October 2019 establishing a trust relationship between the applicants and the respondent over parcels Kiambaa/Kihara/573 and 584, directing transfer of portions to the respondent. Conditional stay of one year was granted on 15th July 2020 subject to deposit of Kshs.1,000,000 as security within 60 days. The applicants never complied, pursued two failed review applications at the ELC, and had earlier sought identical stay orders in the Court of Appeal which were dismissed on 19th March 2021 for material non-disclosure. The ELC judge dismissed the second review as sub judice and allowed the respondent's execution application. The Court of Appeal, Okwengu, Achode and Gachoka JJA, dismissed the application. It held the applicants came with unclean hands, having disobeyed court orders and concealed the earlier stay application; that stay is an equitable, discretionary remedy; that review and appeal over the same orders cannot be pursued concurrently per Yani Haryanto; and that the applicants' multiplicity of proceedings amounted to forum shopping and abuse of process contrary to section 3A of the Appellate Jurisdiction Act. It found the intended appeal frivolous and not arguable even had the twin principles been reached, dismissed the application and awarded costs to the respondent.

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 had established the twin principles under rule 5(2)(b), namely an arguable appeal and that the appeal would be rendered nugatory absent stay
  2. 2.Whether the application was an abuse of court process and whether the applicants came to court with unclean hands
  3. 3.Whether a party may pursue review and appeal over the same orders concurrently

Key legal issues

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01

Whether the application satisfied the twin principles for stay under rule 5(2)(b)

Holding

The court held the intended appeal was frivolous and not arguable, and that even if the twin principles were reached, the applicants would fail.

Reasoning

The court reiterated the settled rule 5(2)(b) threshold: arguability and nugatory-ness. It found the applicants' conduct - repeated failed applications, disobedience of the conditional stay order, and non-disclosure of a prior dismissed stay application in the same court - disentitled them to the discretionary equitable remedy. It further found the appeal, being an attempt to re-litigate review of the same orders, was frivolous and not arguable.

p. 4
02

Whether the application was an abuse of court process

Holding

Yes. The applicants engaged in forum shopping and multiplicity of proceedings, contrary to the overriding objective.

Reasoning

The applicants had previously sought identical stay orders in this Court (dismissed 19th March 2021 for material non-disclosure), repeatedly sought review at the ELC, and had pursued review and appeal over the same orders concurrently. The court held such conduct contravenes section 3A of the Appellate Jurisdiction Act and the overriding objective, and that dismissal is the prescribed outcome for abuse of process.

p. 4
03

Whether review and appeal may be pursued over the same orders

Holding

No. Both options cannot be pursued concurrently or one after the other.

Reasoning

Relying on Yani Haryanto v E.D. & F. Man (Sugar) Ltd, the court endorsed the principle that a party may elect review or appeal, but upon pursuing review to conclusion, the appellate court's jurisdiction over the same orders is extinguished and the notice of appeal becomes purposeless. The applicants' appeal, predicated on a second review attempt, was therefore untenable.

p. 4

Legal principles established

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  • An applicant under rule 5(2)(b) must establish that the appeal is arguable (not frivolous) and that, if stay is not granted, the appeal would be rendered nugatory.
  • A party cannot pursue review and appeal over the same orders concurrently or one after the other; once review is pursued to conclusion, the appellate court has no further jurisdiction over those orders.
  • Stay of execution is an equitable and discretionary remedy, and a litigant who disobeys court orders or fails to make full disclosure is undeserving of it.
  • An application that constitutes forum shopping, evasion or obstruction of the course of justice is an abuse of court process and must be dismissed.

Court orders

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  1. 1.The applicants' application dated 4th February, 2022 was dismissed with costs to the respondent

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
ELC Case No. 25 of 2018
Jurisdiction invoked
Rules 5(2)(b) and 47 of the Court of Appeal Rules

Relief refused

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Stay of execution of the ruling of Okong'o J delivered on 27th January 2022 pending the hearing and determination of the application and appeal

The applicants came to court with unclean hands, having disobeyed court orders and failed to disclose material information; the application was an abuse of court process and the intended appeal was frivolous and not arguable

p. 4

Costs

Application dismissed with costs to the respondent

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.

for such an application to succeed, the applicant must establish first, that his/her appeal is arguable. However, this does not mean that it should be an appeal that should automatically succeed, but it should be one that is not frivolous.
p. 2Rule 5(2)(b) twin principles
Both options cannot be pursued concurrently or one after the other.
p. 4Review and appeal cannot coexist over the same orders
In light of the foregoing we are constrained to decline the exercise of our judicial discretion in favour of the applicant, and state that litigation must come to an end.
p. 4Finality of litigation
we find that the applicants’ application dated 4th February, 2022 lacks merit and is consequently dismissed with costs to the respondent.
p. 4Final orders - dismissal with costs

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, "Jane Njeri Karongo & Harrison Munga Karongo (Sued as the Legal Representatives of the Estate of Rongo Kiuri) & another v Karongo) (Civil Appeal (Application) E055 of 2022) [2024] KECA 416 (KLR)", Case Analysis (2024). Civil Application No. NAI of 2022 (as arising from ELC Case No. 25 of 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/416/eng@2024-04-26

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