Barngetuny v Shivji (Civil Application E019 of 2022) [2024] KECA 913 (KLR)
The bottom line
#Kenya's Court of Appeal refused to stop an eviction because the underlying dispute was already finally decided and the ruling had already been executed.
What this practically means
#Executive summary
#Key legal issues
#Whether the intended appeal is arguable under the Rule 5(2)(b) principles
The intended appeal is not arguable because the matters complained of were finally determined: the ELC judgment of 29th August 2019 was upheld on appeal in Kisumu Civil Appeal No. 262 of 2019, and leave to appeal to the Supreme Court was dismissed on 23rd September 2021.
The impugned ruling was consequential to and gave effect to the ELC judgment of 29th August 2019. The applicant's appeal against that judgment was dismissed by the Court of Appeal on 29th January 2021, and her subsequent application for leave to appeal to the Supreme Court was dismissed on 23rd September 2021. Since the subject matter of the intended appeal has been finally determined, the threshold of arguability under Rule 5(2)(b) is not met and the stay application must fail.
Whether the application is overtaken by events
The application is overtaken by events because the impugned ruling has already been executed and the applicant evicted.
The respondent demonstrated that the eviction orders in the impugned ruling have already been executed and the applicant was evicted from the property. Even apart from the lack of arguability, this fact independently disposes of the application, as a stay of an already-executed ruling would serve no practical purpose. The court therefore dismissed the application on this additional ground.
Legal principles established
#- An arguable appeal is not one which must necessarily succeed, but one which ought to be argued fully before the court and is not frivolous
- An applicant under Rule 5(2)(b) must demonstrate that the intended appeal is arguable and that it will be rendered nugatory unless the orders sought are granted
Court orders
#- 1.The applicant's application dated 11th November 2022 is dismissed
- 2.Costs of the application awarded to the respondent
- On appeal from
- Environment and Land Court
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Barngetuny v Shivji (Civil Application E019 of 2022) [2024] KECA 913 (KLR)", Case Analysis (2024). Civil Application (Rule 5(2)(b)) arising from Eldoret ELC proceedings. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/913/eng@2024-07-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.