Mariko Ndwiga v Edith Muthanje (Environment and Land Appeal 19 of 2019) [2020] KEELC 1553 (KLR)
The bottom line
#Kenya's Environment and Land Court refused to halt an eviction because the appellant showed no real harm—appeals don't automatically pause evictions.
What this practically means
#Executive summary
#Key legal issues
#Whether the Appellant demonstrated substantial loss for the grant of stay pending appeal
No substantial loss was demonstrated. The suit properties are registered in the Respondent's name and encumbered by registrations placed by the Appellant, so there is no risk of alienation; if the Appellant succeeds on appeal he can be put back into possession even if evicted.
The court accepted that the risk of an appeal being rendered nugatory may amount to substantial loss, relying on the nugatory test in Stanley Kangethe Kinyanjui v Tony Keter. But applying the meaning of 'trifling' from Fleur Investments, the court found the appeal could not be rendered worthless or futile: the dispute is over ownership of registered land, reversal is possible, and the Respondent cannot unilaterally deal with the encumbered properties.
Whether the application was properly grounded and whether the Appellant had appealed against the eviction order sought to be stayed
The application was wrongly grounded on the Appellate Jurisdiction Act and Court of Appeal Rules instead of Order 42 Rule 6, an anomaly excused under Section 19(1) of the Environment and Land Act and Article 159(2)(d); however, the pending appeal was against the judgment of 16th January 2020 and not the eviction order of 2nd July 2020 sought to be stayed.
The court excused the wrong provision under the overriding objective. It nevertheless found it strange that the Appellant sought a stay of orders he had not appealed against, and that he had not sought interim protection since the dismissal of his appeal in January 2020, undermining his entitlement to a stay despite filing expeditiously.
Whether a claim of adverse possession raised in the certificate of urgency could aid the stay application
No. The issue of adverse possession was never pleaded in the appeal before the court or before the Chief Magistrates' court and could not aid the application.
In his certificate of urgency the Appellant raised a new contention that he had been in uninterrupted possession for over 12 years and was entitled to adverse possession. The court held that since this issue was never pleaded in the pending appeal or the underlying suit, it could not be used to support the stay application.
Legal principles established
#- The risk of a pending appeal being rendered nugatory may constitute substantial loss, but the applicant must demonstrate by material on record that the appeal would in fact be rendered nugatory absent a stay.
Court orders
#- 1.The Appellant's notice of motion dated 7th July 2020 is dismissed in its entirety
- 2.Costs of the application to the Respondent
- Jurisdiction invoked
- Sections 3A & 3B of the Appellate Jurisdiction Act and Rules 5(2)(b) & 47 of the Court of Appeal Rules (treated by the court as an application under Order 42 Rule 6 of the Civil Procedure Rules, excused under Section 19(1) of the Environment and Land Act and Article 159(2)(d) of the Constitution)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mariko Ndwiga v Edith Muthanje (Environment and Land Appeal 19 of 2019) [2020] KEELC 1553 (KLR)", Case Analysis (2020). Notice of motion dated 7th July 2020 in Civil Appeal No. 40 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1553/eng@2020-07-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.