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Court of AppealAllowedNot stated in the judgment

Mugah v Kunga [1988] KECA 28 (KLR)

Court of Appeal of Kenya
29 April 1988
JNJ.O. NyarangiHPH.G. PlattJGJ.M. Gachuhi
945 words in judgment
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The bottom line

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Kenya's Court of Appeal stopped all High Court orders so a landowner could stay on and use his land until his appeal is fully decided.

What this practically means

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Executive summary

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By a motion under rule 5(2)(b) of the Court of Appeal Rules, the applicant sought a stay of execution and an injunction pending the hearing of an intended appeal. On March 6, 1987 the Court granted interim orders preserving the status quo, allowing the applicant to remain on the land pending the inter partes hearing. The underlying dispute concerned High Court Civil Suit No 3645 of 1983 (OS), an originating summons claiming the land Mwerua/Mukure/23 by adverse possession since April 1960 under a contract of sale. On December 5, 1986 O'Connor J struck out the originating summons under Order VI rule 13 of the Civil Procedure Rules on grounds of want of prosecution and res judicata, and refused a stay. The applicant filed a notice of appeal. Subsequently, on January 7, 1987, the respondent obtained an ex parte order restraining the applicant from trespassing, and on February 23, 1987 the applicant was committed to civil jail for 48 hours for breach of that order, against which further notices of appeal were lodged. Delivered by Nyarangi, Platt and Gachuhi JJA on April 29, 1988, the court applied the principle in Butt v Rent Restriction Tribunal that the status quo should be maintained where the appeal, if successful, would otherwise be rendered nugatory, observing that land is a sensitive issue and parties should be allowed to have their dispute determined by the court of last resort. The court allowed the application, staying all three orders and directing maintenance of the status quo until the final determination of the intended appeal, extended the undertaking as to damages, and made costs of the application costs in the cause.

Questions the Court framed

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

  1. 1.Whether the status quo should be maintained pending the hearing of the appeal, failing which the appeal, if successful, would be rendered nugatory
  2. 2.Whether the orders of December 5, 1986, January 7, 1987 and February 23, 1987 should be stayed pending the intended appeal

Key legal issues

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01

Whether to grant a stay of execution and injunction pending appeal under rule 5(2)(b)

Holding

The application was allowed; the orders of December 5, 1986, January 7, 1987 and February 23, 1987 were stayed and the status quo maintained until final determination of the intended appeal.

Reasoning

The court adopted the approach in Butt v Rent Restriction Tribunal: where an appeal, if successful, would otherwise be rendered nugatory, the status quo should be maintained pending the hearing of the appeal. Land is a sensitive issue and the court's practice is to allow parties to have their dispute determined by the court of last resort. The applicant had developed the land, had a home on it, and stood to be restrained from picking his tea or staying in his house. The undertaking as to damages was extended and costs were made costs in the cause.

p. 2

Legal principles established

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  • The test for granting an order under rule 5(2)(b) pending appeal is whether the status quo should be maintained, failing which the appeal, if successful, would be rendered nugatory
  • Land disputes are treated as sensitive and parties should be allowed to take their disputes to the court of last resort with the status quo preserved

Court orders

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  1. 1.The orders made on December 5, 1986, January 7, 1987 and February 23, 1987 are stayed until the final determination of the intended appeal in High Court Civil Suit No 3645 of 1983 (OS)
  2. 2.The status quo shall be maintained until the final determination of the intended appeal
  3. 3.The undertaking as to damages in writing given on or about March 18, 1987 is extended until the final determination of the intended appeal
  4. 4.Costs of the application are costs in the cause

The bench

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

JN
majority
HP
majority
JG
majority
On appeal from
High Court of Kenya
Civil Case No. 3645 of 1983 (OS)
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules

Quotable passages

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

That the orders made on December 5, 1986, January 7, 1987 and February 23, 1987 are hereby stayed until the final determination of the intended appeal in High Court Civil Suit No 3645 of 1983 (OS).
p. 2Final orders - stay of execution
The status quo shall be maintained until the final determination of the intended appeal.
p. 2Final orders - status quo
This approach was laid down in Butt v Rent Restriction Tribunal, Civil Appeal NAI 6 of 1979, which practice has been followed ever since.
p. 2Test for rule 5(2)(b) applications
Cost of this application shall be costs in the cause.
p. 2Costs

Issues in the judgment

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material

The judgment does not state the names of the applicant or respondent, nor the case number of this application; the parties are referred to only as 'the applicant' and 'the respondent'.

minor

The applicant sought a stay against the order of January 7, 1987 although no notice of appeal was lodged against that order; the court nonetheless stayed it.

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Mugah v Kunga [1988] KECA 28 (KLR)", Case Analysis (1988). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1988/28/eng@1988-04-29

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