BENJAMIN ABURUKI v SAMUEL KILINGO [2007] KECA 143 (KLR)
The bottom line
#The Court of Appeal refused to stop a neighbour using disputed Meru land because the applicant failed to show his intended appeal had any 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 an injunction is not granted
Key legal issues
#Whether there was an order capable of being stayed
No order of stay could issue because the superior court had refused the injunction sought, leaving no order to stay; the applicant effectively abandoned that prayer.
The High Court had dismissed the chamber summons seeking an injunction. A stay lies against an order in force, not against a refusal. The court observed to counsel that the only possibility would be staying the proceedings in the High Court, whereupon counsel virtually abandoned the stay prayer. The court concluded nothing in the superior court's order was capable of being stayed.
Whether the intended appeal was arguable under Rule 5(2)(b)
The applicant failed to demonstrate an arguable appeal; the court was not convinced, prima facie, that the Judge's finding of no prima facie case was unsupported by the evidence.
The only submission on arguability was that the trial Judge erred in finding no prima facie case with a probability of success. Considering the material placed before it and before the superior court, the court was not persuaded the finding lacked evidential support. It stressed this was not a finding the appeal could never succeed, only that arguability had not been shown at that stage.
Whether the appeal would be rendered nugatory absent an injunction
Having found the appeal not arguable, the nugatory limb did not arise; in any event the respondent's activities (digging, erecting a latrine) were not shown to be irreversible.
The second limb of the Rule 5(2)(b) test only falls for consideration once arguability is established. Since the court found the intended appeal not arguable, it did not reach the nugatory question. Even hypothetically, the material showed only digging and erection of structures such as a latrine, and it was not demonstrated these actions would be irreversible if the applicant ultimately succeeded.
Legal principles established
#- An applicant under Rule 5(2)(b) must establish, first, that the intended appeal is arguable (not frivolous) and, second, that if no injunction is granted, the success of the intended appeal would be rendered nugatory.
- The nugatory-consideration limb only arises where the Court has first found the appeal or intended appeal to be arguable.
- Where the superior court has refused to grant an order, there is no order capable of being stayed on appeal.
Court orders
#- 1.The notice of motion dated 6th July, 2007 and lodged in the Court on 10th July, 2007 is dismissed with costs 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 superior court 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
The applicant failed to establish that the intended appeal is arguable, and the second limb of the test did not therefore arise; the alleged actions on the land were not shown to be irreversible
Costs
The notice of motion is 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 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.
The truth of the matter is that there was really nothing in the order of the superior court which this Court could stay.
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 143 (KLR)", Case Analysis (2007). Civil Application 161 of 2007. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2007/143/eng@2007-11-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.