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Court of AppealDismissedCivil Application (Nairobi) arising from Nairobi ELC Suit No. E008 of 2023 (O.S)· [2024] KECA 966 (KLR)

Saji v tegle & another (Civil Appeal (Application) E001 of 2024) [2024] KECA 966 (KLR)

Court of Appeal
26 July 2024
KMK. M'InotiAMA. K. MurgorSKS. Ole Kantai
3,043 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to stop eviction fears over a Nairobi property because the opponents hold neither title nor possession, even though the appeal itself was arguable.

What this practically means

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Executive summary

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The applicant, Nadia Kara Saji, moved the Court of Appeal under rules 5(2)(b), 44 and 49 of the Court of Appeal Rules, 2022 seeking an injunction restraining the respondents from trespassing on, wasting, alienating or disposing of LR No. 17/75, and a stay of the order of Oguttu Mboya, J of 23rd November 2023 striking out her Originating Summons in Nairobi ELC Suit No. E008 of 2023, in which she claimed the suit property by adverse possession. Her claim rests on a chain involving the estates of Kenneth Robert Baker and Purvis Kara Baker, a confirmed 1987 grant giving the respondents a vested interest, her possession since 1992, a power of attorney, and a grant of probate in Succession Cause No. 736 of 2018 which the respondents are seeking to revoke. The respondents conceded the appeal was arguable but denied holding any title, grant or possession capable of rendering the appeal nugatory. Applying the settled two-limb rule 5(2)(b) test, the court found the intended appeal arguable - the gravamen being whether the judge erred in striking out an unchallenged Originating Summons - but held the nugatory limb failed: the respondents hold neither title nor ownership nor possession, so their capacity to evict the applicant is doubtful and her apprehension premature and misplaced. The motion was accordingly dismissed, with costs in the intended appeal.

Key legal issues

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01

Whether the intended appeal was arguable

Holding

The appeal was arguable; both the applicant's claim that the judge wrongly struck out an unchallenged Originating Summons and the respondents' concession supported arguability.

Reasoning

The court applied the settled test that arguability does not require probable success, only a bona fide issue. The gravamen of the appeal was whether the trial judge was right to strike out the Originating Summons where no defence or replying affidavit was filed, leaving the adverse possession claim unchallenged. The respondents conceded the appeal was arguable, and the court was satisfied on that limb.

p. 5
02

Whether the intended appeal would be rendered nugatory

Holding

The nugatory limb failed because the respondents neither hold title nor possession and thus cannot dispossess the applicant pending the appeal.

Reasoning

The applicant feared the respondents would perfect a Certificate of Confirmation of Grant, acquire title and evict her. The respondents denied holding any grant or title over the suit property, pointing out that their revocation application in the succession cause was pending. The court found the applicant's apprehension premature and misplaced since the respondents lack capacity to evict her, and she remained in possession.

p. 5

Legal principles established

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  • Rule 5(2)(b) applications require the applicant to demonstrate both that the appeal is arguable and that it would be rendered nugatory if stay or injunction is not granted
  • An arguable appeal need not necessarily succeed; it suffices that it raises a bona fide issue worthy of consideration
  • A party who holds neither title nor possession of property lacks capacity to evict or dispossess the party in occupation, so the nugatory limb of rule 5(2)(b) is not established on apprehension of eviction by such a party

Court orders

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  1. 1.Dismissal of the Notice of Motion dated 29th December 2023
  2. 2.Costs in the intended appeal

Authorities

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Legislation

  • Court of Appeal Rules, 2022Rule 5(2)(b)
  • Court of Appeal Rules, 2022Rule 44(1) & (2)
  • Court of Appeal Rules, 2022Rule 49
  • Law of Succession Act

Cases cited (4)

  • Republic vs Kenya Anticorruption Commission and 2 others
    [2009] eKLR
  • Kenya Tea Growers Association and Another versus Kenya Planters Agricultural Workers' Union
    Civil Application No. Nai 72 of 2001 (UR)
  • Somak Travels Ltd vs Gladys Aganyo
    [2016] eKLR
  • George Gathuru Karanja vs George Gathuru Thuo & 2 other
    [2019] eKLR
On appeal from
Environment and Land Court, Nairobi
Nairobi ELC Suit No. E008 of 2023 (O.S)
Jurisdiction invoked
Rules 5(2)(b), 44(1) & (2) and 49 of the Court of Appeal Rules, 2022

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, "Saji v tegle & another (Civil Appeal (Application) E001 of 2024) [2024] KECA 966 (KLR)", Case Analysis (2024). Civil Application (Nairobi) arising from Nairobi ELC Suit No. E008 of 2023 (O.S). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/966/eng@2024-07-26

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