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Court of AppealAllowedCivil Application No. E044 of 2022 (not stated in judgment)

Kaptoror Holdings Limited v Kibore & 3 others (Civil Application 073 of 2022) [2024] KECA 532 (KLR)

Court of Appeal
9 May 2024
FSF. SichaleLAL. AchodeWKW. Korir
1,802 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal paused a land ownership case because the same ownership question had already been decided in an earlier case.

What this practically means

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Executive summary

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This is a single-judgment decision of a three-judge bench of the Court of Appeal at Nairobi, delivered on 9th May 2024 by Sichale, Achode and Korir JJA, determining an application under Rule 5(2)(b) of the Court of Appeal Rules by Kaptoror Holdings Limited seeking a stay of proceedings in Eldoret ELC Case No. 553 of 2013 pending an intended appeal. The applicant's underlying position is that it was declared owner of LR No. 10394 in Judicial Review Case No. 1411 of 2001, and that the Environment and Land Court lacked jurisdiction to entertain the 4th respondent's competing ownership claim, which it says is res judicata under section 7 of the Civil Procedure Act. The High Court had joined the applicant as an interested party but refused its prayer to expunge documents adverse to its title. The court applied the twin Rule 5(2)(b) principles, following Trust Bank v Investech and Stanley Kang'ethe Kinyanjui. It found the res judicata/jurisdiction question arguable and held that even one arguable issue suffices, while declining to make definitive findings that could hamstring the appeal bench. On the nugatory limb, the 4th respondent gave no position, and the court agreed the appeal would be rendered nugatory if the proceedings continued and the 4th respondent's defence succeeded. The application was allowed, with a stay of proceedings in ELC 553 of 2013 and costs to abide the appeal. The respondents 1st to 3rd and 5th took no substantive part.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the intended appeal is arguable under the twin principles in Rule 5(2)(b)
  2. 2.Whether the intended appeal would be rendered nugatory if stay of proceedings in ELC 553 of 2013 is not granted

Key legal issues

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01

Whether the intended appeal is arguable

Holding

The court found the question whether the 4th respondent's ownership claim over LR No. 10394 is res judicata arguable, and that even one arguable issue suffices.

Reasoning

The court considered the grounds in the memorandum of appeal against the 4th respondent's rebuttal. It held it could not make definitive findings at that stage, and the res judicata/jurisdiction question raised by the intended appeal met the arguability threshold, applying Stanley Kang'ethe Kinyanjui and Trust Bank v Investech.

p. 3
02

Whether the appeal would be rendered nugatory without a stay

Holding

The court found the appeal would be rendered nugatory if it succeeded and the proceedings in the superior court were not stayed, since the 4th respondent did not address the nugatory limb.

Reasoning

The applicant argued that if the 4th respondent successfully defended the claim in ELC 553 of 2013, the intended appeal would be rendered nugatory, sanctioning a violation of its property rights. The 4th respondent gave no position on this limb, and the court agreed with the applicant.

p. 4

Legal principles established

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  • To succeed under Rule 5(2)(b), an applicant must satisfy the twin tests that the appeal is arguable and that it will be rendered nugatory if stay is not granted.
  • An arguable appeal need not necessarily succeed; it suffices that it is not frivolous and deserves full argument, and one arguable issue is enough.
  • In Rule 5(2)(b) applications the court must not make definitive or final findings of fact or law that may embarrass the hearing of the main appeal.
  • 'Nugatory' bears its full meaning, including whether what is sought to be stayed is reversible or whether damages would reasonably compensate the aggrieved party.

Court orders

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  1. 1.Stay of proceedings in Eldoret ELC Case No. 553 of 2013 pending the hearing and determination of the intended appeal
  2. 2.The application dated 23rd May 2022 is allowed
  3. 3.Costs shall abide the appeal

The bench

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

FS
majority

Wrote the judgment

LA
majority

Wrote the judgment

WK
majority

Wrote the judgment

On appeal from
Environment and Land Court (Eldoret)
ELC 553 of 2013
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules

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 Court must be satisfied on the twin principles that the appeal is arguable and that if the orders sought are not granted and the appeal succeeds, the appeal will be rendered nugatory
p. 3Twin principles under Rule 5(2)(b)
The jurisdiction of the Court under Rule 5(2)(b) is original and discretionary, and it is trite law that to succeed an applicant has to show firstly that his appeal or intended appeal is arguable
p. 3Nature of Rule 5(2)(b) jurisdiction
We are aware that even one arguable issue is sufficient to avail the applicant the orders sought. We shall say no more on this lest we hamstring the bench that will be seized of the appeal.
p. 3One arguable ground suffices; restraint at interlocutory stage
The applicant having satisfied the two limbs as required under Rule 5 (2) (b) of this Court’s Rules, the application dated 23rd May 2022, is found to be meritorious and is hereby allowed. The costs shall abide the appeal.
p. 4Final orders and costs

Issues in the judgment

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minor

Paragraph numbering repeats; two consecutive paragraphs are numbered 19.

minor

The case number of the application before this Court is not stated anywhere in the judgment.

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, "Kaptoror Holdings Limited v Kibore & 3 others (Civil Application 073 of 2022) [2024] KECA 532 (KLR)", Case Analysis (2024). Civil Application No. E044 of 2022 (not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/532/eng@2024-05-09

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