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Court of AppealDismissedCivil Application E114 of 2023· [2024] KECA 827 (KLR)

Muema v Denholm (Civil Application E114 of 2023) [2024] KECA 827 (KLR)

Court of Appeal of Kenya
12 July 2024
2,191 words in judgment
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The bottom line

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Kenya's Court of Appeal dismissed a stay application because the applicant never explained what her intended appeal would actually argue.

What this practically means

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Executive summary

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The applicant, Catherine Nduku Muema, moved the Court of Appeal at Mombasa by Notice of Motion dated 21st December 2023 seeking stay of execution of the judgment of the Environment and Land Court at Mombasa (L.L. Naikuni, J.) delivered on 22nd November 2023 in Civil Appeal No. 32 of 2022, which had reversed a trial-court dismissal of the respondent's claim in CM ELC Case No. 158 of 2020 concerning Plot No. 11616/III/MN at Mtwapa. The application was brought under Rule 5(2)(b) of the Court of Appeal Rules following the filing of a Notice of Appeal. The respondent opposed, arguing the application cited the wrong rules, that no appeal had been filed, that the applicant had fraudulently transferred the suit property to her brother, and that mere lawful execution does not cause substantial loss. The Court restated the twin conjunctive principles under Rule 5(2)(b): arguability and nugatory-ness, confirming that a filed Notice of Appeal suffices to invoke the Court's jurisdiction even before the appeal is filed. However, because the applicant annexed neither a draft memorandum of appeal nor any indication of her intended grounds, the Court, applying Priscilla Wambui Mathenge, held she had failed the arguability limb; the Court further observed no nugatory aspect arose since the applicant was no longer in possession and had disposed of her interest. In an obiter practice direction, the Court urged parties to disclose the substance of the decision intended to be appealed. The application was dismissed with costs to the respondent.

Key legal issues

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01

Twin principles governing Rule 5(2)(b) applications

Holding

The applicant must demonstrate both that the appeal (or intended appeal) is arguable and that it will be rendered nugatory absent stay; the conditions are conjunctive.

Reasoning

The Court reiterated that Rule 5(2)(b) confers an independent discretionary jurisdiction guided by twin principles balancing the successful litigant's right to the fruits of judgment against the aggrieved litigant's right to challenge a decision in the higher court. Both limbs must be satisfied; failure on the first renders consideration of the second unnecessary.

p. 3
02

Duty to disclose the decision under appeal

Holding

An applicant for stay must disclose the nature or substance of the judgment or order to be appealed against, e.g. by annexing a draft memorandum of appeal; bare assertions of an arguable appeal are insufficient.

Reasoning

The applicant did not annex a draft memorandum of appeal or otherwise indicate the grounds of her intended appeal, merely asserting high chances of success. Following Priscilla Wambui Mathenge, the Court held it could not assess arguability without knowing what the intended appeal would contend, and used the occasion to state a practice expectation that parties disclose the substance of the decision appealed from.

p. 4
03

Nugatory aspect on the facts

Holding

No nugatory aspect arose where the applicant was no longer in possession of the suit property and had disposed of her interest in it.

Reasoning

Nugatory-ness requires consideration of whether what is to be stayed is reversible or whether damages would reasonably compensate the aggrieved party. Here the applicant had lost possession and had transferred her interest, so executing the decree could not render a successful appeal futile.

p. 4

Legal principles established

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  • Filing a Notice of Appeal is sufficient to invoke the Court's jurisdiction for stay purposes; the appeal itself need not already have been filed.
  • An applicant under Rule 5(2)(b) must satisfy both the arguability and the nugatory-ness conditions, which are conjunctive.
  • A single bona fide arguable ground suffices to establish arguability.
  • An applicant for stay must disclose the substance of the decision to be appealed against, failing which the application cannot be granted.

Court orders

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  1. 1.The Notice of Motion dated 21st December 2023 seeking stay of execution is dismissed
  2. 2.Costs of the application to the respondent

Authorities

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Legislation

  • Court of Appeal RulesRule 5(2)(b)
  • Civil Procedure Rules

Cases cited (9)

  • Charles N. Ngugi v ASL Credit Limited
    Nairobi High Court Misc. Application No. E488 of 2021
  • James Wangalwa & Another v Agnes Naliaka Cheseto
    [2012] KLR
  • Peter Gathecha Gachiri v Attorney General and 4 Others
    Civil Application Nai 24 of 2014 (unreported)
  • Butt v Rent Restriction Tribunal
    [1982] KLR 417
  • Kenya Shell Ltd v. Kibiru & Another
    [1986] KLR 410
  • Stanley Kang'ethe v Tony Keter & 5 others
    [2013] eKLR
  • Damji Pragji Mandavia v Sara Lee Household & Body Care (K) Ltd
    Civil Application No. Nai 345 of 2004
  • Joseph Gitahi Gachau & Another v Pioneer Holdings (A) Ltd. & 2 others
    Civil Application No. 124 of 2008
  • Priscilla Wambui Mathenge v Mary Wairimu Mathenge & Another
    [2020] eKLR
On appeal from
Environment and Land Court at Mombasa
Civil Appeal No. 32 of 2022
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, "Muema v Denholm (Civil Application E114 of 2023) [2024] KECA 827 (KLR)", Case Analysis (2024). Civil Application E114 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/827/eng@2024-07-12

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