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Court of AppealDismissedCivil Application 174 of 2008

Margaret Wacheke Mutuota v Jane Wanjiru Ngotho & 4 others [2009] KECA 14 (KLR)

Court of Appeal of Kenya
30 October 2009
1,034 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Court of Appeal refused to stop the land's subdivision taking effect because an existing protective order already kept the property safe during the appeal.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Nyeri (Tunoi, Githinji and Onyango Otieno, JJA) on an application under Rule 5(2)(b) of the Court of Appeal Rules by Margaret Wacheke Mutuota seeking stay of execution of a High Court judgment of Kasango, J. dated 16th November 2007 in H.C. Succ. No. 2 of 1993, and an injunction restraining the respondents from entering land parcel No. Loc. 14/Kairo/381, pending hearing of Civil Appeal No. 2 of 2008. The dispute arises out of the estate of Mutuota Muchui, whose land was divided amongst his six daughters by a confirmed grant; the applicant's objection to the grant, founded on an alleged oral will bequeathing the entire land to her, was dismissed, with the court ordering the land divided equally among the five surviving daughters. The High Court had itself dismissed her stay application on 18th June 2008 but issued a prohibitory order preserving the property pending appeal. Applying the twin Rule 5(2)(b) tests, the Court of Appeal found the intended appeal arguable, raising both legal and factual issues, but held that the applicant had failed to establish that the appeal would be rendered nugatory: the existing prohibitory order eliminated any risk of alienation, and the other matters went only to convenience. The court dismissed the application and ordered that costs be costs in the appeal. The decision under appeal was not itself under review in this interlocutory 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 intended appeal is arguable
  2. 2.Whether, unless stay of execution and injunction are granted, the appeal, if successful, would be rendered nugatory

Key legal issues

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01

Whether the intended appeal was arguable

Holding

The court was satisfied, on a perusal of the superior court's judgment and the memorandum of appeal, that the appeal raised both legal and factual issues that were clearly arguable, without undertaking a detailed examination of the merits.

Reasoning

The court perused the judgment of Kasango, J., the subject matter of the appeal and the grounds of appeal, and found the appeal raised both legal and factual arguable issues. It deliberately refrained from detailed examination of merits to avoid preempting or embarrassing the appeal court. The first limb of the Rule 5(2)(b) test was therefore satisfied.

p. 2
02

Whether the appeal would be rendered nugatory if stay and injunction were not granted

Holding

The nugatory limb failed. The superior court had already dismissed a similar stay application but issued a prohibitory order preserving the suit land pending appeal, so the fear of alienation was unfounded, and the remaining grounds showed only convenience, not nugatory-ness.

Reasoning

The court held that the apprehension of alienation had no foundation because the superior court had issued a prohibitory order preserving the land pending appeal. The applicant's personal occupation and development of the land since 1970 showed only that exclusive use pending appeal might be just; they did not demonstrate that a successful appeal would be rendered nugatory. Balancing justice also favoured registered proprietors of demarcated portions.

p. 3

Legal principles established

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  • An applicant under Rule 5(2)(b) of the Court of Appeal Rules must satisfy the twin tests of an arguable appeal and that the appeal would be rendered nugatory absent the orders sought.
  • Matters showing only that it would be just or convenient to grant the orders do not satisfy the nugatory-ness test.

Court orders

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  1. 1.Application dismissed
  2. 2.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.

majority
majority
On appeal from
High Court of Kenya at Nyeri
H.C. Succ. No. 2 of 1993
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules

Relief refused

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Stay of execution of the High Court judgment, decree and subsequent orders dated 16th November 2007 pending Civil Appeal No. 2 of 2008

The applicant failed to demonstrate that the appeal would be rendered nugatory without the stay; the superior court had already issued prohibitory orders preserving the suit land pending appeal.

p. 3

Injunction restraining the respondents from entering on or interfering with land parcel No. Loc. 14/Kairo/381 pending the appeal

It would be unjust to restrain respondents who are already registered proprietors of demarcated portions; the matters raised showed only that exclusive use might be just, not that the appeal would be nugatory.

p. 3

Costs

Costs of the application shall 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.

For this application to succeed the applicant is required to show that the pending appeal is arguable and that unless the orders for stay of execution and injunction are granted the appeal if ultimately successful would be rendered nugatory.
p. 2Twin test under Rule 5(2)(b)
The applicant has not shown that the appeal would be rendered nugatory unless the orders sought are granted.
p. 3Failure of the nugatory-ness limb
Accordingly we dismiss the application. The costs of the application shall be costs in the appeal.
p. 3Final orders and costs

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, "Margaret Wacheke Mutuota v Jane Wanjiru Ngotho & 4 others [2009] KECA 14 (KLR)", Case Analysis (2009). Civil Application 174 of 2008. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2009/14/eng@2009-10-30

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