Geoffrey Mungai Thiongo v Elsie Ridge Limited & 4 others
The bottom line
#The Court of Appeal refused to pause a land case the applicant had lost, because refundable costs meant winning the appeal later would still fix everything.
What this practically means
#Executive summary
#Key legal issues
#Whether the intended appeal is arguable
The appeal is arguable because the applicant contends the judge erred in failing to consider that the issues raised could not be effectively resolved through alternative mechanisms.
Applying the established principles in Stanley Kangethe Kinyanjui v Tony Ketter, the court held that an arguable appeal is not one that must necessarily succeed. The contention that the judge erred in upholding preliminary objections on exhaustion despite the claim that alternative mechanisms could not effectively resolve the issues was sufficient to show the appeal was not frivolous.
Whether the appeal would be rendered nugatory if stay is not granted
The nugatory test was not satisfied because the ELC proceedings were at an end, costs had been taxed, and costs are refundable if the appeal succeeds.
The court noted that the proceedings before the ELC were at an end following the striking out of the suit, costs had already been taxed, and the applicant had recourse by way of a reference if aggrieved by taxation. Since the order appealed from was a negative order and costs could be refunded upon success, refusing stay would not render the appeal nugatory.
Legal principles established
#- An arguable appeal need not be one that will necessarily succeed; it suffices that it is not frivolous
- A negative order, such as an order striking out a suit, is generally not capable of stay where the successful party can refund costs if the appeal succeeds
Court orders
#- 1.The application dated 8th February 2024 is dismissed with costs to the 2nd and 5th respondents
- On appeal from
- Environment and Land Court
- Nairobi ELC Case No. 1593 of 2016
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Ragira v Ombi Rubber Rollers Limited (Employment and Labour Relations Cause 1535 of 2016) [2024] KEELRC 2533 (KLR)[2024] KEELRC 2533 (KLR)18 Oct 2024not followed
Cite this brief
#Cite this brief
Caselaw, "Geoffrey Mungai Thiongo v Elsie Ridge Limited & 4 others", Case Analysis (2024). Civil Application No. NAI of 2024 (undated in judgment; arising from Nairobi ELC Case No. 1593 of 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1189/eng@2024-09-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.