Alfayo Njiru Jackson v Jane Betha Wandia Jackson [1997] KECA 348 (KLR)
The bottom line
#The Court of Appeal refused to pause enforcement of a land judgment because the applicant could not show his planned second appeal had a real chance of succeeding.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the applicant had an arguable intended appeal to warrant a stay of execution of the appellate decree
- 2.Whether the respondent should be kept away from the fruits of the judgment pending the intended appeal
Key legal issues
#Whether a stay of execution pending an intended second appeal should issue
The application was dismissed because the applicant failed to demonstrate an arguable appeal on the limited grounds available for a second appeal, and the respondent was entitled to the fruits of her judgment; a limited preservation order was nonetheless made.
The court noted that a second appeal lies only on limited grounds under section 72(1) of the Civil Procedure Act. Having examined the proposed grounds of appeal, it was not satisfied they raised an arguable appeal. It declined to keep the respondent from the fruits of her judgment, but preserved the subject matter by restraining alienation or parting with possession of the suit land pending the hearing and final determination of any duly filed appeal.
Legal principles established
#- A second appeal to the Court of Appeal lies only on limited grounds: where the decision of the superior court is contrary to law or some usage, where a point of law was not determined, or where there is a substantial procedural defect affecting the decision on the merits.
- A stay of execution will not be granted where the applicant has not demonstrated an arguable appeal and where the decree-holder would otherwise be kept from the fruits of the judgment.
Court orders
#- 1.Dismissal of the application for stay of execution with costs
- 2.If an appeal is duly filed and the suit land is registered in the respondent's name during its pendency, she shall not transfer, alienate or part with possession of it or any part until the hearing and final determination of that appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Embu
- H.C.C.Ap. No. 50 of 1996
- Jurisdiction invoked
- Section 72(1) of the Civil Procedure Act (second appeal on limited grounds)
Relief refused
#Stay of execution of the appellate decree pending the hearing and determination of an intended appeal
The court was not satisfied that the applicant had an arguable appeal and held the respondent should not be deprived of the fruits of her judgment
Costs
The application was dismissed with costs (costs of the application awarded to the respondent).
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Broadly speaking, the 2nd appeal to this court can only be if the decision of the superior court is contrary to law or to some usage or if the court failed to determine any point of law or if there is a substantial procedural defect which may have produced error or defect in the decision of the superior court upon the merits.
we are not certain at this stage that the applicant has an arguable appeal and we do not feel satisfied that the respondent should be kept away from the fruits of the judgment in her favour. We therefore dismiss the application with costs.
However we order that if an appeal is duly filed and if during the pendency of that appeal the suit land is registered in the respondent's name, she shall not transfer or alienate or part with possession thereof or any part thereof until the hearing and final determination of that appeal.
Issues in the judgment
#The record is a certified copy with garbled text in the closing passage and the subordinate court case number is incomplete ("H.C.C.AP. NO. 50 OF" with no year), leaving the underlying case number partly unascertainable.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Alfayo Njiru Jackson v Jane Betha Wandia Jackson [1997] KECA 348 (KLR)", Case Analysis (1997). Civil Appeal No. NAI. 193 of 1997 (83/97 UR). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1997/348/eng@1997-10-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.