Kwamwere (Suing as an Administrator of the Estate of the Estate of John Kamwere Gichuhi – Deceased) & another v Nderitu (Civil Application E051 of 2023) [2024] KECA 922 (KLR)
The bottom line
#Kenya's Court of Appeal blocked an eviction, ruling that long-term occupants of land can stay put until their appeal is fully decided.
What this practically means
#Executive summary
#Key legal issues
#Whether the appeal is arguable
The appeal raises at least one arguable issue arising from the trial court's acknowledgment of discrepancies between the 1963 allotment and the final area list.
The Court noted the trial court's observation that the Settlement Fund Trustees failed to timeously explain discrepancies in acreage between the 1963 allocation and the final area list. It considered it a genuine question whether the original allottee or the person on the final area list should be recognized. A single bona fide arguable ground suffices at this stage, without making definitive findings on the merits.
Whether the appeal would be rendered nugatory if stay is refused
Eviction of the applicants pending the appeal would render the appeal nugatory, given their occupation of over 30 years and the possibility they may ultimately be found entitled.
The respondent acknowledged the applicants had been on the suit properties for over 30 years. Uprooting them from land they may ultimately be found entitled to would render the appeal futile, since eviction pending appeal would be difficult to reverse. The Court's sense of justice required that the applicants remain in occupation pending determination of the appeal.
Legal principles established
#- In a Rule 5(2)(b) application the twin principles are arguability and nugatory-ness, and the applicant must satisfy the court on both.
- A stay will issue where eviction pending appeal would render the appeal nugatory, particularly where the applicant has been in long occupation of the land.
Court orders
#- 1.An order for stay of execution of the orders made in the counter-claim, pursuant to which the applicants would otherwise be evicted, to remain in force until the appeal is heard and determined
- 2.Costs of the application to abide the outcome of the appeal; costs awarded to the party who succeeds in the substantive appeal
- On appeal from
- Environment and Land Court, Nyahururu
- Nyahururu ELC No. 19 of 2018
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules (procedural provision allowing the Court to protect the subject matter of an appeal or intended appeal)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kwamwere (Suing as an Administrator of the Estate of the Estate of John Kamwere Gichuhi – Deceased) & another v Nderitu (Civil Application E051 of 2023) [2024] KECA 922 (KLR)", Case Analysis (2024). Not stated in the judgment (application arising from Nyahururu ELC No. 19 of 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/922/eng@2024-07-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.