Benjamin Aburuki v Samuel Kilingo [2007] KECA 116 (KLR)
The bottom line
#The Court of Appeal refused to protect a landowner's property during his appeal because he failed to show his case had real merit.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether there was any order of the superior court capable of being stayed
- 2.Whether the intended appeal is arguable
- 3.Whether the success of the intended appeal would be rendered nugatory if no injunction is granted
Key legal issues
#Whether the intended appeal was arguable
The Court was not convinced that the intended appeal was arguable; the finding of the learned Judge on prima facie case was not shown to be unsupported by the evidence.
The applicant's only submission was that the trial Judge's conclusion that there was no prima facie case with probability of success was mistaken given the evidence. The Court considered the material placed before it and before the superior court and was not convinced, prima facie, that the Judge's finding was unsupported by the evidence, while expressly declining to say the appeal could never succeed.
Whether the appeal would be rendered nugatory absent an injunction
The nugatory test did not fall for consideration because the arguability threshold had failed; in any event the respondent's activities on the land were not shown to be irreversible.
Since the Court found the intended appeal not arguable, it need not consider nugatory prejudice. Even if it had, the only evidence was that the respondent was digging the land and erecting structures such as a latrine, and the applicant did not demonstrate that those actions were irreversible if the Court found for him.
Legal principles established
#- An applicant under Rule 5(2)(b) must establish, first, that the appeal or intended appeal is arguable and, secondly, that if no injunction is granted the success of the appeal would be rendered nugatory.
- There can be no stay of an order where the superior court made no positive order capable of being stayed; a dismissal of an application leaves nothing to stay.
- The nugatory question arises for consideration only if the Court first finds the appeal arguable.
Court orders
#- 1.The notice of motion dated 6th July 2007 and lodged in the Court on 10th July 2007 be and is hereby dismissed with the costs thereof to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Meru
- Civil Case No. 31 of 2007
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules
Relief refused
#Stay of the orders/ruling of Meru High Court Case No. 31 of 2007 delivered on 24th May 2007
The learned Judge having refused to grant an injunction, there was no order capable of being stayed; counsel virtually abandoned the prayer
Injunction restraining the respondent from entering, trespassing on or remaining on Land Parcel No. 3425 – Ankamia pending appeal
The intended appeal was not shown to be arguable, and no irreversible actions by the respondent were demonstrated
Costs
The notice of motion was dismissed with the costs thereof 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.
we could only grant such an order where an applicant has established before the Court, firstly, that the appeal intended to be filed is an arguable one, i.e. one which is not frivolous and secondly that if no order of an injunction is granted as requested, the success in the intended appeal would have been rendered nugatory
The truth of the matter is that there was really nothing in the order of the superior court which this Court could stay.
The second point of whether the appeal will be rendered nugatory unless an injunction is granted only arises for consideration when the Court finds that an appeal or intended appeal is arguable.
Accordingly we order that the notice of motion dated 6th July, 2007 and lodged in the Court on 10th July, 2007 be and is hereby dismissed with the costs thereof to the respondent.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Benjamin Aburuki v Samuel Kilingo [2007] KECA 116 (KLR)", Case Analysis (2007). Civil Application 161 of 2007 (UR104/2007). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2007/116/eng@2007-11-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.