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Court of AppealDismissedNot stated in judgment· [2024] KECA 1751 (KLR)

Moses Chege Magua v Ian Mukora Munene & 3 others

Court of Appeal
6 December 2024
FTF. TuiyottAMA.O. MucheluleGOG. V. Odunga
1,759 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 refused to stop enforcement of a settled land case because the applicant showed neither an arguable appeal nor that waiting would harm him.

What this practically means

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Executive summary

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The applicant, Moses Chege Magua, together with the 4th respondent, Joseph Gitau Kungu, had sued the 1st respondent, Ian Mukora Munene, before the Environment and Land Court at Nairobi seeking eviction from Land Parcel No. 89/42 and damages. The suit was settled by a consent recorded on 10th November 2021, under which the applicants' title was cancelled and the property acknowledged as belonging to Munene Estates Limited. Nearly three years later, the applicant applied before the ELC to set aside the consent decree as a nullity, alleging fraud and lack of instructions to counsel. M.D. Mwangi, J. dismissed that application with costs on 12th July 2024. The applicant then lodged a notice of appeal and brought a motion under Rule 5(2)(b) of the Court of Appeal Rules seeking restraining orders against the 1st respondent and the Land Registrar pending the hearing of the appeal. Applying the settled twin principles from Trust Bank Ltd v Investech Bank Ltd - arguability and the nugatory-works test - the Court held that, given the 4th respondent's concession that instructions had been given to file and settle the suit, the appeal raised no arguable issue. It further found the application overtaken by events since the decree had been executed and the property distributed under the succession causes; the applicant had never been in occupation, so the appeal could not be rendered nugatory, and the correct remedy would have been a mandatory injunction neither sought nor proved. The Court dismissed the motion with costs.

Key legal issues

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01

Whether the appeal before the Court was arguable under Rule 5(2)(b)

Holding

The Court doubted that the appeal raised any arguable issue, given the 4th respondent's concession that instructions had been given to file and settle the suit.

Reasoning

The applicant and the 4th respondent initially claimed jointly that counsel had filed and settled the suit without their authority. The 4th respondent later shifted position, swearing that both had instructed the firm to file the suit, negotiate and record the consent. Against this shift, and the concession that they had no claim to the suit property, the Court could not discern an arguable issue, while expressly avoiding conclusions that would embarrass the hearing court.

p. 4
02

Whether the appeal would be rendered nugatory if stay was not granted

Holding

No nugatory effect was shown: the decree had been executed, the property distributed, and the applicant was never in occupation.

Reasoning

The Court noted the decree had been executed and the suit property distributed pursuant to the succession causes. From the applicant's own affidavits, his complaint was that others occupied the property and he wished to evict them, meaning he was not in occupation at the time of the trial court's hearing. A mandatory injunction to regain possession was neither sought nor proved, and there was no demonstrated risk of disposal of the property.

p. 4

Legal principles established

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  • An applicant under Rule 5(2)(b) must demonstrate that the appeal is arguable and that, unless stay is granted, the appeal if successful will be rendered nugatory.
  • A Rule 5(2)(b) applicant who was never in possession of the suit property cannot demonstrate that the appeal will be rendered nugatory.
  • An application for stay pending appeal that is overtaken by events, where the appropriate relief would have been a mandatory injunction neither sought nor proved, must fail.

Court orders

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  1. 1.Dismissal of the notice of motion seeking stay/restraining orders pending appeal
  2. 2.Costs of the application to the 1st respondent
On appeal from
Environment and Land Court, Nairobi
Not stated in judgment
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules

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, "Moses Chege Magua v Ian Mukora Munene & 3 others", Case Analysis (2024). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1751/eng@2024-12-06

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