Mungai v Munyi (Civil Application 167 of 2010) [2010] KECA 91 (KLR)
The bottom line
#The Court of Appeal halted enforcement of a High Court order over a Nairobi property because the losing party showed his appeal had merit and would be worthless if the property changed hands.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the applicant's intended appeal is arguable
- 2.Whether, if the stay is not granted, the intended appeal or its success would be rendered nugatory
- 3.Whether the overriding objective under sections 3A and 3B of the Appellate Jurisdiction Act applies to a rule 5(2)(b) application
Key legal issues
#Arguability of the intended appeal
The grounds on adverse possession and unpleaded damages raised in the draft memorandum of appeal are not frivolous.
The applicant contended the trial judge erred in finding adverse possession despite only five years (1993-1998) having elapsed under sections 7 and 13 of the Limitation of Actions Act, and in awarding damages never pleaded. The Court found these grounds not frivolous, satisfying the first limb of the rule 5(2)(b) test.
Nugatory-value test
The appeal would be rendered nugatory because the respondent has not shown means to absorb the value of the suit property if he disposes of it or changes its character.
The applicant feared the respondent, if reinstated into the commercial property, could put it beyond reach or substantially alter its character. The Court found no evidence the respondent possessed means sufficient to absorb the property's value, so preserving the status quo protected the right of appeal and served the overriding objective by treating both parties with equality.
Application of the overriding objective to rule 5(2)(b) applications
The overriding objective under sections 3A and 3B of the Appellate Jurisdiction Act is a mandatory requirement in every rule 5(2)(b) application.
The Court held that in considering the merits of an application under a power in the Act and its Rules, it must as a matter of statute take a broad view of justice, consider all circumstances and act justly. Preserving the status quo treated the parties equally and preserved the right of appeal until final determination on the merits.
Legal principles established
#- Rule 5(2)(b) jurisdiction is original and discretionary; an applicant must show the appeal or intended appeal is arguable and that unless stay is granted the appeal or its success will be rendered nugatory.
- In exercising power under the Appellate Jurisdiction Act and its Rules, the Court is mandatorily required to apply the overriding objective, take a broad view of justice and consider all relevant circumstances to act justly.
Court orders
#- 1.Stay of execution granted in terms of prayer two (2) of the application dated 5th July, 2010
- 2.Costs of the application to abide the outcome of the intended appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the judgment
Wrote the judgment
- On appeal from
- High Court of Kenya at Nairobi
- H.C.C.C. No. 2091 of 1998 (OS)
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules and sections 3A and 3B of the Appellate Jurisdiction Act
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.
In the result we grant a stay in terms of prayers two (2) of the application dated 5th July, 2010 and further order that the costs of the application abide the outcome of the intended appeal. It is so ordered.
It is trite that the jurisdiction of the court under rule 5 (2) (b) is original and discretionary
we are as a matter of statute law required to take a broad view of justice and take into account all the necessary circumstances, factors, and principles and be satisfied at the end of the exercise that we have acted justly
In our view, striking the balance in the circumstances is acting fairly and does satisfy the principal aims of the overriding objective.
Issues in the judgment
#Internal inconsistency in the ruling: the Court states it 'do[es] not agree' with the respondent's prematurity submission yet simultaneously states 'the respondent has not shown' certain matters, and the application itself describes the applicant as 'appellant' inconsistently; the ruling also contains typographical errors ('an mandatory', 'to ensue', an incomplete date 'expire on 27th 2010').
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Rugut & 2 others v Rono (Environment and Land Appeal E023 of 2024) [2026] KEELC 3442 (KLR)[2026] KEELC 3442 (KLR)4 Jun 2026
Cite this brief
#Cite this brief
Caselaw, "Mungai v Munyi (Civil Application 167 of 2010) [2010] KECA 91 (KLR)", Case Analysis (2010). Civil Application No. 167 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2010/91/eng@2010-10-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.