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Court of AppealPartially AllowedCivil Application No Nai (1987) - under rule 5(2)(b) Court of Appeal Rules

Mukuma v Abuoga [1988] KECA 107 (KLR)

Court of Appeal of Kenya
13 July 1988
HPH.G. PlattJGJ.M. GachuhiJMJ.R.O. Masime
774 words in judgment
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The bottom line

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Kenya's Court of Appeal can pause an eviction pending appeal where the appellant would suffer substantial loss and the appeal is genuinely arguable.

What this practically means

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Executive summary

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This is a rule 5(2)(b) application to the Court of Appeal for stay of execution pending appeal. Schofield J had, on 13 November 1986, dismissed the plaintiff's suit with costs, entered judgment for the defendant on the counterclaim, ordered the plaintiff's eviction from the suit premises and granted mesne profits with interest. The plaintiff filed an appeal and applied for stay; O'Connor J refused a stay in the High Court (finding no sufficiently high degree of possible success in the appeal) but granted four weeks' stay to enable an application to the Court of Appeal. An ex parte stay was granted on 29 June 1987 owing to a wrongly dated hearing notice, and the matter was then heard inter partes. Following M M Butt v Rent Restriction Tribunal (adopting Wilson v Church (No 2)) and this Court's decision in Kenya Shell Ltd v Kibuku, the court held that substantial loss is the cornerstone of both the Order XLI rule 4(2) jurisdiction and the rule 5(2)(b) jurisdiction: the court must preserve the status quo so the appeal is not rendered nugatory. Eviction would imperil the plaintiff, whose family had built a home on the land since 1967. The court rejected the argument that the appeal had no chance of success, finding a serious argument which might go either way. The panel of Platt, Gachuhi and Masime JJA unanimously confirmed the stay, granted an injunction restraining the respondent from taking possession of or dealing with the suit premises, conditioned the orders on security of Kshs 15,000 within one month, and ordered that the costs of the application be costs in the appeal. Civil Application No Nai 69 of 1988 was dealt with in the course of the application.

Questions the Court framed

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

  1. 1.Whether the stay of execution of the order for eviction granted ex parte should be confirmed
  2. 2.Whether the plaintiff would suffer substantial loss if the stay is not granted, rendering the appeal nugatory
  3. 3.Whether the appeal is arguable or has no chance of success
  4. 4.Whether the stay should be granted on terms, including security

Key legal issues

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01

Test for stay of execution under rule 5(2)(b) of the Court of Appeal Rules

Holding

Substantial loss is the cornerstone; the court must preserve the status quo so the appeal is not rendered nugatory, and may impose security conditions

Reasoning

Following M M Butt v Rent Restriction Tribunal (adopting Wilson v Church (No 2)), the court held that a party exercising an undoubted right of appeal is entitled to have the appeal preserved from being rendered nugatory. High Court stays under Order XLI rule 4(2) turn on substantial loss, delay and security; the rule 5(2)(b) discretion is at large but rests on the same cornerstone of substantial loss. Eviction would imperil the plaintiff's home built since 1967.

p. 2
02

Whether the appeal was arguable

Holding

The court rejected the contention that the appeal had no chance of success; there was a serious argument which might go either way

Reasoning

The central dispute below was whether the land was sold or leased. If the plaintiff was right that it was sold and specific performance of transfer ordered, eviction would imperil her. That disagreement over the nature of the transaction disclosed a triable, seriously arguable question, sufficient to justify a stay even though the High Court judge had found no sufficiently high degree of possible success.

p. 2

Legal principles established

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  • Where a party is exercising the right of appeal, the court should preserve the status quo so the appeal is not rendered nugatory
  • Substantial loss is the cornerstone of both the High Court stay jurisdiction under Order XLI rule 4(2) and the Court of Appeal jurisdiction under rule 5(2)(b)
  • A stay may be granted where there is a serious argument which might go either way, on terms of security

Court orders

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  1. 1.Stay of execution of the order for eviction pending the hearing of the appeal
  2. 2.Injunction restraining the respondent from taking possession of or dealing in any manner with the suit premises pending the hearing of the appeal
  3. 3.Stay and injunction granted on condition that the applicant secures the sum of Kshs 15,000 within one month, such security to the satisfaction of the Deputy Registrar
  4. 4.Costs of the application to be costs in the appeal

The bench

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

HP
majority
JG
majority
JM
majority
On appeal from
High Court of Kenya
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules (original jurisdiction of the Court of Appeal)
Consolidated with
Civil Application No Nai 69 of 1988 (dealt with in the course of this application)

Relief refused

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Lifting of the stay sought by the respondent

The court found the plaintiff would suffer substantial loss and the appeal was arguable

p. 2

Costs

The costs of this application to be costs in the appeal.

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.

in the case of a party appealing, exercising his undoubted right of appeal, the court ought to see that the appeal is not rendered nugatory. It should therefore preserve the status quo until the appeal is heard.
p. 2Purpose of stay pending appeal
substantial loss is the cornerstone of both jurisdictions. That is what has to be prevented, because such loss would render the appeal nugatory.
p. 2Substantial loss as the cornerstone of stay jurisdiction
We would therefore grant the application in both forms, namely (a) that there be stay of execution of the order for eviction; and (b) an injunction restraining the respondent from taking possession or dealing in any manner with the suit premises pending the hearing of the appeal.
p. 2Final orders - stay and injunction granted
The order will be on condition that the applicant secures the sum of Kshs 15,000 within one month from today’s date, such security to be to the satisfaction of the Deputy Registrar.
p. 2Security condition on the stay
The costs of this application to be costs in the appeal.
p. 2Costs of the application

Issues in the judgment

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minor

The names of the parties are not given in the judgment text, which refers only to 'the plaintifi' and 'the defendant'; the case title is therefore reconstructed

minor

The date line of the judgment is internally inconsistent, reading 'THIS 13TH DAY OF JULY 13, 1988'

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (5)

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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, "Mukuma v Abuoga [1988] KECA 107 (KLR)", Case Analysis (1988). Civil Application No Nai (1987) - under rule 5(2)(b) Court of Appeal Rules. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1988/107/eng@1988-07-13

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