Kitivi & another v Musyoki & another
The bottom line
#The Court of Appeal stopped an eviction of two brothers from disputed Machakos land until their appeal is heard, protecting over thirty years of occupation.
What this practically means
#Executive summary
#Key legal issues
#Whether the intended appeal is arguable
The intended appeal is arguable, not frivolous, given the contention that a constructive trust arose and the respondents are estopped from evicting the applicants.
The applicants contend both courts below erred in failing to find that the parties' conduct created a constructive trust and that the respondents are estopped from evicting them. Applying the Kinyanjui v Ketter principles, the court held that an arguable appeal need not necessarily succeed; it need only deserve the court's attention. The constructive trust and estoppel arguments sufficed.
Whether the appeal would be rendered nugatory if eviction proceeded
Eviction of the applicants prior to determination of the appeal would render it nugatory if it succeeded, since the trial court's orders effectively amounted to eviction.
The purpose of Rule 5(2)(b) discretion is preservation of the appeal's subject matter. The applicants claim over thirty years' occupation; the respondents inconsistently called them squatters yet denied occupation. Given the trial court ordered demolition and removal of structures, effectively eviction, the court took the view for present purposes that the applicants are in occupation and eviction would render a successful appeal nugatory.
Legal principles established
#- An arguable appeal is not one that will necessarily succeed but one that deserves the attention of the court.
- The object of the exercise of discretion under Rule 5(2)(b) of the Court of Appeal Rules is to preserve the subject matter of the appeal.
Court orders
#- 1.Prayer 3 of the application dated 30th July 2024 granted: the respondents, whether by themselves, their agents or otherwise, restrained by order of injunction from evicting the applicants from the property or from demolishing the applicants' structures on the property pending the hearing and determination of their appeal
- 2.Costs of the application to abide by the outcome of the appeal
- On appeal from
- Environment and Land Court of Kenya at Machakos
- ELC Cause No. E019 of 2024
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kitivi & another v Musyoki & another", Case Analysis (2024). Civil Application E389 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1942/eng@2024-12-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.