Njogo & another v Kagunda & another
The bottom line
#Kenya's Court of Appeal refused to pause a land judgment because it had already been carried out, even though the appeal itself was arguable.
What this practically means
#Executive summary
#Key legal issues
#Arguability of the appeal
The 12 grounds of appeal, including the contention that the trial Judge erred in cancelling title without interrogating the circumstances of the transfer and in finding a trust not noted in the registry, are arguable and not idle grounds
The Court examined sample grounds from the Memorandum of Appeal and found them arguable, applying the settled test that arguability requires only that the appeal is not frivolous, not that it must succeed. It cited the Mandavia decision for the proposition that an arguable point calls for full interrogation by the Court.
Nugatory aspect
The applicants failed to satisfy the nugatory test because the ELC judgment has already been executed: the transfer was cancelled, the land reverted to the 1st applicant, and the title is registered in his name so the respondent cannot meddle with it
The respondent demonstrated by Certificate of Official Search and deponed evidence that execution took place from about 22nd March 2024, cancelling transfers and noting her spousal interest. Since the title stands registered in the 1st applicant's name, the appeal, if successful, would not be rendered nugatory absent stay.
Legal principles established
#- An applicant for stay of execution pending appeal must demonstrate that the appeal is arguable and that it would be rendered nugatory absent stay
- An arguable point on appeal is not one which will necessarily succeed, but one calling for full interrogation and determination by the Court
- No order for stay of execution should issue where execution has already taken place
Court orders
#- 1.The Motion for stay of execution pending appeal is dismissed
- 2.Each party to meet their own costs
- On appeal from
- Environment and Land Court at Muranga
- E.L.C. Suit Case No. E038 of 2021
- Jurisdiction invoked
- Order 42 Rule 1 of the Civil Procedure Rules 2010 and all other enabling provisions of law
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Njogo & another v Kagunda & another", Case Analysis (2024). Civil Application E031 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1870/eng@2024-12-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.