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Court of AppealAllowedNot stated in the judgment

Nyandiko & 9 others v Nzioka & 3 others (Civil Application E170 of 2024) [2024] KECA 1423 (KLR)

Court of Appeal
11 October 2024
SKS. Gatembu KairuSKS. ole KantaiJMJ. Mativo
2,226 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Court of Appeal stopped the eviction of ten families from their Nairobi homes until their appeal against a land ownership ruling is fully heard.

What this practically means

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Executive summary

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The applicants were plaintiffs in Nairobi ELC Cause No. 285 of 2017, claiming to be beneficial owners of portions of Nairobi Block 118/126 purchased between 2014 and 2016 from the 2nd respondent, on which they built homes. Angote, J. dismissed their suit and the 2nd respondent's counter-claim on 14th March 2024, declared the 3rd respondent the owner, and ordered the applicants to deliver vacant possession within 30 days failing which eviction and demolition would issue. The applicants filed a Notice of Appeal and moved the Court of Appeal under rule 5(2)(b) for an injunction restraining execution, a stay of enforcement, and maintenance of the status quo pending appeal. They argued the intended appeal was arguable - the trial court ignored the Land Registrar's evidence, treated rates receipts unequally, and barred witnesses - and that eviction and demolition would render the appeal nugatory, as the 3rd respondent could not compensate them. The 3rd respondent opposed, asserting a valid regular judgment and that the applicants were trespassers. Though served, no respondent attended the hearing; the court considered written submissions for the 1st and 2nd respondents. Applying the settled rule 5(2)(b) principles, the court found the intended grounds arguable and held that evicting families from long-occupied homes would cause untold hardship; the 3rd respondent failed to prove ability to pay once the allegation of inability was made. The court allowed the Motion in terms of prayers 1, 2 and 3, preserving the status quo, with costs in the appeal.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the intended appeal is arguable
  2. 2.Whether the intended appeal would be rendered nugatory absent a stay/injunction pending appeal

Key legal issues

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01

Whether the intended appeal is arguable

Holding

The intended grounds - non-consideration of the Land Registrar's evidence, unequal treatment of rates receipts, and barring of witnesses - were arguable.

Reasoning

The court reviewed the intended grounds of appeal: that the Land Registrar's evidence was ignored, that the Judge considered the 3rd respondent's rates receipts but not the applicants', and that witnesses were barred from testifying with resulting prejudice. It found these were not frivolous; an arguable point need not succeed, only merit full consideration by the court.

p. 5
02

Whether the appeal would be rendered nugatory absent stay

Holding

Eviction and demolition of the applicants' homes before the appeal would cause untold hardship, and the 3rd respondent failed to show ability to compensate them.

Reasoning

The trial order required the applicants to vacate within 30 days failing which eviction and demolition would issue. Evicting families from homes they had occupied for over ten years would cause untold hardship. Since the applicants alleged the 3rd respondent could not compensate them if demolition preceded a successful appeal, the burden shifted to him to prove ability to pay, which he did not discharge.

p. 5

Legal principles established

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  • An applicant under rule 5(2)(b) must demonstrate that the appeal is arguable and that it would be rendered nugatory absent stay.
  • Once an allegation is made that a respondent is unable to pay back an applicant, the duty shifts to the respondent to prove ability to pay.

Court orders

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  1. 1.An injunction restraining the 3rd respondent from executing or enforcing the judgment and orders of the ELC pending the hearing and determination of the intended appeal (prayer 1)
  2. 2.An order staying implementation and/or enforcement of the ELC judgment pending the filing, hearing and determination of the intended appeal (prayer 2)
  3. 3.An order maintaining the status quo obtaining pending the filing, hearing and determination of the intended appeal (prayer 3)
  4. 4.Costs of the application to be in the appeal

The bench

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One judgment of the whole court — no separate or dissenting opinions.

SK
majority
SK
majority
JM
majority
On appeal from
Environment and Land Court
Nairobi ELC Cause No. 285 of 2017
Jurisdiction invoked
Rule 5(2)(b), Court of Appeal Rules

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

We are on the whole satisfied that the applicants have met the principles on which an application of this nature is considered. We allow the Motion in terms of prayers 1, 2 and 3 thereof. Costs of the application will be in the appeal.
p. 5Final orders - stay and status quo granted
For an applicant to succeed he must, firstly, demonstrate that the appeal, or intended appeal, as the case may be, is arguable, which is the same as saying that it is not frivolous.
p. 4Rule 5(2)(b) principles
an arguable point is not one that will necessarily succeed; it is one deserving a full consideration by the court
p. 5Meaning of arguability
The position in law is that once an allegation is made that a respondent is not able to pay back to an applicant the duty shifts to the respondent to show or prove ability to pay
p. 5Burden of proof on ability to pay

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, "Nyandiko & 9 others v Nzioka & 3 others (Civil Application E170 of 2024) [2024] KECA 1423 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1423/eng@2024-10-11

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