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Court of AppealDismissedNot stated in the judgment

Otieno & 9 others v Wagude & another (Civil Application E156 of 2023) [2024] KECA 835 (KLR)

Court of Appeal of Kenya
19 July 2024
1,310 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 refused to block an eviction because the landowners' appeal raised no genuinely arguable issues.

What this practically means

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Executive summary

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By a Notice of Motion dated 1st December 2023 brought under rule 5(2)(b) of the Court of Appeal Rules, the applicants sought a temporary injunction restraining the respondents from evicting them or interfering with the suit property, Kisumu/Dago/4721 & 4722, pending their appeal against a ruling of the Environment and Land Court delivered on 8th December 2022, which struck out their suit as res judicata and an abuse of court process, the issues having been conclusively determined in Kisumu ELC No. 13 of 2015. The applicants relied on Trust Bank Ltd v Investech Bank and Stanley Kangethe Kinyanjui v Tonny Ketter, contending that their appeal was arguable, principally on how the suit property was transferred from Marikus Wagude Olwal deceased to the respondents without a succession cause, and that they faced eviction and irreparable loss. The respondents filed no reply and did not attend the hearing, but the court considered the motion on the merits. Applying the settled twin principles - an arguable appeal and the nugatory aspect - the court held that none of the five draft grounds of appeal raised a debatable issue, since the ruling rested on the preliminary issue of res judicata; the succession-cause complaint could not be arguable in an appeal from that ruling; and the applicants deposed to no facts in response to res judicata. The court therefore found the appeal frivolous, an attempt to delay execution of prior judgments, and dismissed the motion. Because the respondents did not participate, the court declined to award any costs. Judgment delivered at Kisumu on 19th July 2024 by a bench of Okwengu, Gatembu Kairu and H. A. Omondi, JJAs.

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 have an arguable appeal
  2. 2.Whether the appeal would be rendered nugatory if the order of injunction pending appeal is not granted

Key legal issues

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01

Threshold for an injunction pending appeal under rule 5(2)(b)

Holding

The applicant must demonstrate an arguable appeal and that the appeal would be rendered nugatory absent the order.

Reasoning

The court reiterated that its discretion under rule 5(2)(b) is exercised only where the twin principles are met: the appeal must not be frivolous but arguable, and the appeal's result, if successful, would be rendered nugatory without the order. The purpose of such an injunction is to preserve the status quo pending appeal.

p. 3
02

Arguability of the applicants' appeal

Holding

The appeal was frivolous; the applicants failed to respond to the res judicata finding and raised issues that were not arguable on the ruling appealed from.

Reasoning

None of the five draft grounds of appeal raised a debatable issue, as the ELC ruling rested on the preliminary issue of res judicata. The applicants' intended issue about transfer of the suit property without a succession cause could not be arguable in an appeal from a ruling striking out the suit as res judicata; the applicants deposed to no facts in response to that issue.

p. 3

Legal principles established

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  • An applicant under rule 5(2)(b) must satisfy the court both that the appeal is arguable and that it would be rendered nugatory if the orders sought are not granted.

Court orders

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  1. 1.The applicants' Notice of Motion dated 1st December 2023 seeking a temporary injunction pending appeal is dismissed
  2. 2.No costs awarded as the respondents did not file a reply or attend the hearing

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
Kisumu ELC No. 13 of 2015 (prior suit); the struck-out suit's own number not stated
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules (discretion to grant orders of injunction/stay pending appeal)

Relief refused

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Temporary injunction restraining the respondents from evicting the applicants or interfering with the suit property pending appeal

The applicants failed to demonstrate an arguable appeal; the appeal was held to be frivolous

p. 3

Costs

No costs awarded - 'we do not find it appropriate to award any costs'

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 applicants having failed to meet the threshold upon which this court can exercise its discretion. This applicants’ motion therefore fails. It is accordingly dismissed.
p. 3Disposition - dismissal of the rule 5(2)(b) motion
As the respondent did not file any reply to the motion or attend the court for the hearing of the motion, we do not find it appropriate to award any costs.
p. 3Costs order
The purpose of granting an injunction pending appeal is to preserve the status quo and to prevent the appeal, if successful, from being rendered nugatory.
p. 3Purpose of an injunction pending appeal
An arguable appeal is not one which must necessarily succeed, but one which ought to be argued fully before the court; one which is not frivolous.
p. 3Definition of an arguable appeal

Issues in the judgment

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minor

The copy of the ELC ruling annexed to the application is incomplete, with missing pages, limiting the full appreciation of the facts.

minor

The names of the respondents and the case number of the present application are not stated in the judgment as reproduced.

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, "Otieno & 9 others v Wagude & another (Civil Application E156 of 2023) [2024] KECA 835 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/835/eng@2024-07-19

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