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Court of AppealAllowedNot stated in the judgment (application arising from Nyahururu ELC No. 19 of 2018)· [2024] KECA 922 (KLR)

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)

Court of Appeal of Kenya
26 July 2024
1,716 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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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

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Executive summary

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This was a notice of motion dated 26th July 2023 seeking a stay of execution of a judgment delivered on 2nd March 2023 by the Environment and Land Court at Nyahururu in Nyahururu ELC No. 19 of 2018. The applicants, who were the plaintiffs below, had sought declarations of exclusive possession of parcels Nyandarua/Njabini/90 and 91, an injunction, vacant possession and damages for trespass. The respondent counter-claimed, asserting that the applicants had encroached on his parcel Nyandarua/Njabini/615, and the trial court ordered the applicants to deliver vacant possession of the encroaching portions. The applicants appealed and, apprehending eviction, moved the Court of Appeal at Nakuru under Rule 5(2)(b). Applying the settled twin principles - arguability and nugatory-ness - and without making definitive findings of fact or law, the Court found at least one arguable issue arising from the trial court's own acknowledgment of discrepancies between the 1963 Settlement Fund Trustees allotment and the final area list. On nugatory-ness, the Court noted the respondent's acknowledgment that the applicants had occupied the suit properties for over 30 years, and held that their eviction pending appeal would render the appeal nugatory. The Court granted a stay of execution of the counter-claim orders until the appeal is heard and determined, and ordered that costs of the application abide the outcome of the substantive appeal.

Key legal issues

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01

Whether the appeal is arguable

Holding

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.

Reasoning

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.

p. 4
02

Whether the appeal would be rendered nugatory if stay is refused

Holding

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.

Reasoning

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.

p. 5

Legal principles established

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  • 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

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  1. 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. 2.Costs of the application to abide the outcome of the appeal; costs awarded to the party who succeeds in the substantive appeal

Authorities

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Legislation

  • Court of Appeal RulesRule 5(2)(b)
  • Court of Appeal RulesRule 75

Cases cited (9)

  • Stanley Kang'ethe Kinyanjui v Tony Keter & 5 Others
    [2013] eKLR
  • Ruben & 9 Others v Nderitu & Another
    (1989) KLR 459
  • Halai & Another v Thornton & Turpin (1963) Ltd.
    (1990) KLR 365
  • David Morton Silverstein v Atsango Chesoni
    Civil Application No. Nai 189 of 2001
  • 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
  • Reliance Bank Ltd v Norlake Investments Ltd
    [2002] 1 EA 227
  • International Laboratory for Research on Animal Diseases v Kinyua
    [1990] KLR 403
  • Dennis Mogambi Mang'are v Attorney General & 3 others
    [2012] eKLR
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

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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, "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.