Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealPartially AllowedCivil Application No. E074 of 2024 (as stated in the record as arising from Garissa E&LC Case No. 4 of 2019)

Ahmed & 6 others v Godad (Civil Appeal (Application) E416 of 2024) [2024] KECA 1500 (KLR)

Court of Appeal
25 October 2024
2,544 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

#

Kenya's Court of Appeal stopped the eviction of seven farmers pending appeal, ruling that asking for 'certified copies' of court proceedings still protects a late appeal.

What this practically means

#

Executive summary

#
This is a single judgment of a three-judge bench of the Court of Appeal (Gatembu Kairu, Muchelule and Korir, JJA) delivered at Nairobi on 25th October 2024, determining two interlocutory applications heard together: the appellants' motion dated 23rd May 2024 seeking stay of execution of the judgment of Mutungi, J. in Garissa Environment and Land Court Case No. 4 of 2019, and the respondent Dubey Mohamed Godad's motion dated 12th June 2024 seeking to strike out the appeal as filed out of time. The court first addressed the striking-out application, holding it competent under rule 86 but finding its only contestation - that the appellants requested 'certified copies' rather than 'copies' of proceedings as required by the proviso to rule 84(1) - to be without merit, since the substance of the request was to obtain proceedings to facilitate the appeal and the registrar's certificate of delay confirmed late provision of the proceedings. The motion to strike out was dismissed. On stay, applying the twin principles under rule 5(2)(b), the court found the first appeal arguable and held that execution, which would evict the appellants from land farmed commercially since 1997 and risked sale to third parties, would render the appeal nugatory; the respondent's assertion of means was unsupported by evidence. The stay application was allowed and each party ordered to bear its own costs. The decision does not disturb the trial judgment; it preserves the status quo pending the hearing of the appeal.

Questions the Court framed

#

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

  1. 1.Whether the respondent's application to strike out the appeal is competent and merits, namely whether the appellants are entitled to the benefit of the proviso to Rule 84(1) of the Court of Appeal Rules despite requesting 'certified copies' of proceedings rather than 'copies of proceedings'
  2. 2.Whether the appellants have an arguable appeal for purposes of an order of stay of execution under rule 5(2)(b)
  3. 3.Whether the appeal, if successful, would be rendered nugatory in the absence of stay

Key legal issues

#
01

Whether a request for 'certified copies of proceedings' falls within the proviso to rule 84(1) of the Court of Appeal Rules

Holding

It does. The substance of the request, not the use of the word 'certified', determines entitlement to the exclusion of time; the registrar's certificate of delay confirms the time taken to prepare and deliver the copy.

Reasoning

The court held that the primary intention of the letter dated 4th March 2024 was clear: to obtain a copy of proceedings to facilitate the filing of an appeal. Whether the proceedings were certified or not was immaterial. The duty to provide proceedings reposed in the registrar of the superior court, whose certificate of delay confirmed late delivery. The striking-out application raised only this point and was dismissed.

p. 4
02

Whether the appeal is arguable for purposes of rule 5(2)(b)

Holding

Yes. The grounds of appeal, challenging the trial judge's analysis of evidence in a first appeal, deserve determination on merit.

Reasoning

The court noted that the appeal is a first appeal in which matters of fact and law fall for consideration. Without delving into the grounds so as not to embarrass the bench that would hear the appeal, it was satisfied the issues raised in the memorandum of appeal deserve the Court's determination on merit.

p. 4
03

Whether the appeal would be rendered nugatory absent stay

Holding

Yes. Execution would involve eviction from land used for commercial farming since 1997, with unrebutted risk of sale to third parties, and losses not adequately compensable by damages.

Reasoning

The appellants deposed that enforcement would evict them from the disputed land, disrupt commercial farming and risk transfer to third parties; these assertions were not challenged. The respondent's claim to be a person of means capable of refunding the decretal sum was unsupported by evidence. The status quo prior to judgment should be maintained and the respondent can be compensated by damages should the appeal fail.

Legal principles established

#
  • An applicant under rule 5(2)(b) must establish both an arguable appeal and that the appeal will be rendered nugatory absent stay; both limbs must be demonstrated
  • A request for 'certified copies of proceedings' satisfies the proviso to rule 84(1); the use of the word 'certified' does not disqualify an appellant from the exclusion of time, provided the application for the copy was made within thirty days and served as required
  • An application to strike out an appeal under rule 86 must be filed within 30 days from the date of service of the record of appeal

Court orders

#
  1. 1.The respondent's notice of motion dated 12th June 2024 seeking to strike out the appeal is dismissed
  2. 2.The appellants' notice of motion dated 23rd May 2024 seeking stay of execution pending appeal is allowed
  3. 3.Each party to bear their own costs in respect of both applications

The bench

#

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

majority
majority
majority
On appeal from
Environment and Land Court, Garissa
E&LC Case No. 4 of 2019
Jurisdiction invoked
Rule 5(2)(b) and Rules 84 and 86 of the Court of Appeal Rules (applications for stay of execution and striking out an appeal)

Relief refused

#

Striking out of the appellants' appeal

The only contestation was that the request was for 'certified copies' rather than 'copies' of proceedings, which the court held could not defeat the letter's primary intention; the certificate of delay confirmed the trial registry's late provision of proceedings

p. 4

Costs

Each party to bear their own costs in respect of both applications: 'the appropriate order on costs is to direct the parties to meet their own costs in respect to both applications, which we hereby do.'

Quotable passages

#

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

the mere inclusion of the word “certified” cannot take away the primary intention of the letter dated 4th March 2024, which was clear that the requested copy of proceedings was to facilitate the filing of an appeal.
p. 4Proviso to rule 84(1) - certified vs uncertified copies of proceedings
The applicant who would succeed upon such an application must persuade the court on two limbs, which are first, that his appeal or intended appeal is arguable, that is to say it is not frivolous.
p. 4Twin principles for stay under rule 5(2)(b)
we find Ms. Godad’s notice of motion dated 12th June 2024 to be without merit and we hereby dismiss it. On the other hand, the appellants’ notice motion dated 23rd May 2024 has merit and is hereby allowed.
p. 5Disposition
the appropriate order on costs is to direct the parties to meet their own costs in respect to both applications, which we hereby do.
p. 5Costs - final orders

Issues in the judgment

#
minor

The citation for Reliance Bank Ltd vs Norlake Investments appears within a quotation from Stanley Kangethe Kinyanjui vs Tony Ketter, so its citation is attributable to the earlier case rather than being independently cited by this court.

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Ahmed & 6 others v Godad (Civil Appeal (Application) E416 of 2024) [2024] KECA 1500 (KLR)", Case Analysis (2024). Civil Application No. E074 of 2024 (as stated in the record as arising from Garissa E&LC Case No. 4 of 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1500/eng@2024-10-25

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