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Court of AppealAllowedCivil Application 152 of 2009

Andrew Cheruiyot & another v Ayoka Rogito [2009] KECA 18 (KLR)

Court of Appeal of Kenya
6 November 2009
Philip Kiptoo TunoiP. K. TunoiPWP. N. WakiAVAlnashir Visram
894 words in judgment
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The bottom line

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Kenya's Court of Appeal paused a land eviction order because demolishing the building would waste money if the owners' appeal succeeds.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Nakuru (Tunoi, Waki and Visram, JJA) on a single-judge application under Rule 5(2)(b) of the Court of Appeal Rules for stay of execution of a ruling and decree of the High Court at Kericho (Ang'awa, J) dated 19th February 2009 in H.C.C.C. No. 5 of 2003, pending an intended appeal. The underlying suit concerned a claim of trespass and eviction over land parcels Kericho/631/1254 and 631/1255. The parties had by consent referred the boundary dispute to the Kericho District Surveyor, agreeing to share survey costs; the surveyor's report was adopted by the High Court as judgment, which declared the respondent owner of the land as surveyed, ordered the applicants to pay KShs 7,000 towards the surveyor's fee, and awarded the respondent the costs of the suit. The applicants argued the appeal was arguable on the point that the judge ordered them to bear the entire costs contrary to the consent, and that execution would demolish part of their building. The court applied the established twin test for Rule 5(2)(b) applications: arguability and nugatory-ness. It found at least one arguable point on the costs issue and was satisfied the appeal would be rendered nugatory if the protruding building were demolished. The application was allowed and stay of execution granted as prayed, with costs in the appeal. The decision does not disturb the High Court's judgment; it preserves the status quo pending appeal.

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 the appeal, if successful, would be rendered nugatory unless stay of execution is granted

Key legal issues

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01

Whether the intended appeal was arguable

Holding

The appeal was arguable because the superior court ordered the applicants to pay the entire costs when the consent order provided that the parties share the survey costs.

Reasoning

The court identified at least one arguable point on the record: the consent order expressly required the parties to share the survey costs, yet the learned judge ordered the applicants to pay them. A single arguable point suffices on a Rule 5(2)(b) application, provided the test of arguability, not certainty of success, is met.

p. 2
02

Whether the appeal would be rendered nugatory if stay was refused

Holding

The appeal would be rendered nugatory because part of the applicants' building lay on the respondent's land and would have to be demolished, with rebuilding at considerable expense if the appeal succeeded.

Reasoning

The court weighed the practical consequences for both parties. Execution would entail demolition of the portion of the applicants' building protruding onto the respondent's land; should the appeal succeed, the building would need rebuilding at considerable expense. The respondent's offer to pay damages did not dissuade the court from finding nugatory-ness.

p. 2

Legal principles established

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  • On a Rule 5(2)(b) application, the applicant must satisfy the court both that the intended appeal is arguable and that, unless the order sought is granted, the appeal if successful would be rendered nugatory.
  • An arguable appeal need not be one that must succeed; it is one that deserves full argument before the court.

Court orders

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  1. 1.Stay of execution of the ruling and decree of the High Court at Kericho dated 19th February 2009 pending the hearing and determination of the intended appeal
  2. 2.Costs of the application to be in the appeal

The bench

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One judgment of the whole court — no separate or dissenting opinions.

Philip Kiptoo Tunoi
majority
PW
majority
AV
majority
On appeal from
High Court of Kenya at Kericho
H.C.C.C. No. 5 of 2003
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules

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.

The discretion of the court on an application of this kind has to be exercised upon the established principles which require an applicant to satisfy the court both that the intended appeal or appeal is arguable and that unless the order sought is granted, the appeal, if successful, would be rendered nugatory.
p. 2Test for stay pending appeal under Rule 5(2)(b)
An arguable appeal is not one which must necessarily succeed, but one which ought to be argued fully before the court.
p. 2Meaning of arguability
Having considered the interests of both the parties, we have come to the conclusion that this application has merit. We allow the same and order that there be stay of execution as prayed. The costs shall be in the appeal.
p. 2Final orders and disposition

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, "Andrew Cheruiyot & another v Ayoka Rogito [2009] KECA 18 (KLR)", Case Analysis (2009). Civil Application 152 of 2009. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2009/18/eng@2009-11-06

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