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Court of AppealDismissedCivil Application No. Nai 39 of 2002 (23/02 UR)· [2002] KECA 213 (KLR)

Grace Wanjiru Njihia v Joseph Mburu Kimuku

Court of Appeal
8 March 2002
JGJ.E. GicheruRKR.O. KwachEOE.O. O'Kubasu
750 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to stop an eviction because the applicant failed to show her appeal was arguable and worth preserving.

What this practically means

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Executive summary

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This was an application by notice of motion under rule 5(2)(b) of the Court of Appeal Rules seeking a stay of eviction pursuant to a High Court judgment (Aganyanya J) in H.C.C.C. No. 2115 of 1999 delivered on 26th February 2001, pending the applicant's intended appeal against the judge's ruling of 15th November 2001 dismissing her application to set aside that judgment. The applicant, who had neither entered appearance nor filed a defence in the High Court, argued through counsel that she had given a credible explanation that she was never served with summons and had a good defence raising triable issues. The respondent contended that service had been effected and that the intended appeal raised no arguable point. The Court of Appeal (Gicheru, Kwach and O'Kubasu JJ.A) restated the twin test for rule 5(2)(b) relief: the applicant must show the intended appeal is arguable and that, if the stay is refused and the appeal succeeds, it would be rendered nugatory. Noting the litigation history, including the earlier order of Gachuhi J that the deceased Wamaitha held only a life interest in the suit land which lapsed on her death, the court concluded the application had no merits, dismissed it and awarded costs to the respondent. The decision below was not disturbed; the ruling concerns only interim relief.

Key legal issues

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Twin test for stay under rule 5(2)(b) of the Court of Appeal Rules

Holding

The application was dismissed because the applicant failed to satisfy the twin requirements of an arguable appeal and nugatory-ness.

Reasoning

The court restated the established test for rule 5(2)(b) applications: the applicant must demonstrate that the intended appeal is arguable, and that the appeal, if successful, would be rendered nugatory unless the stay is granted. Considering the litigation history, including the earlier order of Gachuhi J that the deceased Wamaitha had only a life interest which lapsed on her death, the court found the application devoid of merit and dismissed it with costs.

p. 2

Legal principles established

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  • An applicant under rule 5(2)(b) must satisfy the court both that the intended appeal or appeal is arguable and that, if the application is not granted and the appeal succeeds, it would be rendered nugatory.

Court orders

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  1. 1.The application for stay of eviction is dismissed
  2. 2.Costs of the application to the respondent
On appeal from
High Court of Kenya at Nairobi
H.C.C.C. No. 2115 of 1999
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Grace Wanjiru Njihia v Joseph Mburu Kimuku", Case Analysis (2002). Civil Application No. Nai 39 of 2002 (23/02 UR). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2002/213/eng@2002-03-08

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