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Court of AppealDismissedCivil Application No. Nai. E047 of 2023 (as stated in the motion dated 5th December 2023, arising from Kisii ELC ruling of 21st September 2023)

Abuga & 5 others (Sued as Trustees, Official and Agents of the Seventh Day Adventist Church Millennium) v General & 3 others (Civil Application E154 of 2023) [2024] KECA 833 (KLR)

Court of Appeal of Kenya
19 July 2024
1,627 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Court of Appeal refused to stop evictions, ruling that appeals used merely to delay judgment enforcement will be thrown out with costs.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Kisumu (Okwengu, Gatembu Kairu and H.A. Omondi, JJA) dated 19th July 2024 on a notice of motion dated 5th December 2023 brought under Rule 5(2)(b) of the Court of Appeal Rules. The applicants, a church group led by Peterson Ondicho, sought an injunction restraining the respondents, including the Child Welfare Society of Kenya, from evicting them from LR Kisii Municipality/Block III/649 pending an intended appeal against the ELC at Kisii's ruling of 21st September 2023, which had dismissed their application to review eviction orders issued on 3rd November 2022. In the alternative they sought maintenance of status quo over a section of Block III/649 measuring 1.429 Ha. The respondents, through the affidavit of Irene Mureithi, contended that the applicants were repeatedly attempting to circumvent conclusive judgments in Kisii ELC No. 220 of 2017 (eviction ordered) and Kisii ELC No. 9 of 2021 (suit struck out as res judicata), both affirmed in Civil Appeal No. 152 of 2019. Applying the twin principles in Madhupaper International Limited v Kerr and Stanley Kang'ethe Kinyanjui v Tony Ketter, the Court held that the intended appeal was not arguable: the applicants' suit had been dismissed as res judicata, they had not appealed the judgment of 3rd November 2022, and the res judicata depositions remained undisputed. Having failed the arguability limb, the Court did not consider the nugatory limb, dismissed the application with costs, and the interim relief was refused. The decision below was not disturbed; the intended appeal remains pending.

Key legal issues

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01

Whether the intended appeal is arguable

Holding

The intended appeal against the refusal to review the eviction orders is not arguable; it is frivolous and a further attempt to delay the respondents from realizing the fruits of their judgment

Reasoning

The applicants' suit had been dismissed as res judicata, following judgments in Kisii ELC No. 220 of 2017 and Kisii ELC No. 9 of 2021, affirmed in Civil Appeal No. 152 of 2019. The applicants filed no appeal against the judgment dated 3rd November 2022 dismissing their suit, and the depositions on res judicata in the respondents' replying affidavit remained undisputed, no further affidavit having been filed. The appeal against the order declining review therefore lacks substance.

p. 4
02

Whether the nugatory limb need be addressed

Holding

Having failed the arguability limb, the applicants necessarily fail, and the Court need not consider the nugatory limb since both limbs must be satisfied

Reasoning

The Court applied the settled twin principles from Stanley Kang'ethe Kinyanjui v Tony Ketter & 5 others, reiterating that an applicant must satisfy the court on both the arguability and nugatory limbs. Having found the appeal not arguable, the Court declined to delve into the nugatory aspect and dismissed the application with costs.

p. 4

Legal principles established

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  • An applicant under Rule 5(2)(b) must satisfy both limbs of the twin principles: that the appeal is arguable and that it would be rendered nugatory if interim relief is denied
  • A single bona fide arguable ground of appeal is sufficient to satisfy the arguability limb
  • An arguable appeal need not necessarily succeed; it is one that is not frivolous and ought to be argued fully
  • The Court must look beyond mere arguability in form and consider whether the appeal is groundless, lacks substance, or is brought for an ulterior motive such as delay
  • Where an applicant fails the arguability limb, the Court need not consider the nugatory limb

Court orders

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  1. 1.The notice of motion dated 5th December 2023 seeking an injunction/status quo pending appeal is dismissed
  2. 2.Costs of the application awarded to the respondents
On appeal from
Environment and Land Court at Kisii
Ruling of 21st September 2023 dismissing review of the ruling dated 3rd November 2022 (originating suit Kisii ELC Case No. 220 of 2017)
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules (application for injunction or stay pending appeal)

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, "Abuga & 5 others (Sued as Trustees, Official and Agents of the Seventh Day Adventist Church Millennium) v General & 3 others (Civil Application E154 of 2023) [2024] KECA 833 (KLR)", Case Analysis (2024). Civil Application No. Nai. E047 of 2023 (as stated in the motion dated 5th December 2023, arising from Kisii ELC ruling of 21st September 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/833/eng@2024-07-19

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