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Court of AppealDismissedCivil Application No. NAI. 149 of 2011 (UR.99/2011)

Murungi Kirigia v Catherine Kagwiria [2011] KECA 91 (KLR)

Court of Appeal of Kenya
2 December 2011
EOE. O. O'KubasuEGE. M. GithinjiJOJ. W. Onyango Otieno
1,838 words in judgment
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The bottom line

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The Court of Appeal refused to halt enforcement of a land judgment because the appellant appealed the wrong decision and acted too late.

What this practically means

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Executive summary

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The applicant, Murungi Kirigia, had lost a High Court suit at Meru in which Catherine Kagwiria obtained a declaration that three parcels of land (Igoji/Kiangua/2036, 2037 and 2038) were held in trust for her, with orders cancelling his title and registering the parcels in her name, plus costs. His applications to set aside the judgment and for stay in the High Court were dismissed, and he filed a notice of appeal against the ruling of 30th April 2010 refusing to set aside the judgment. He then moved the Court of Appeal at Nyeri under Rule 5(2)(b) seeking stay of execution of the decree and a temporary injunction restraining eviction or alienation pending the intended appeal. The respondent opposed, showing that the decree had been fully executed: parcels 2037 and 2038 were registered in the names of third parties (Cleto Kithure and Samuel Murithi) not before the Court, and only parcel 2036 remained in her name. The Court held that the notice of appeal confers its jurisdiction and, as it related only to the ruling of 30th April 2010, the Court had no jurisdiction to stay the decree of 9th July 2009; that prayer was incompetent. The injunction prayer failed because the decree had been executed, the application was overtaken by events, and the Court cannot make orders against non-parties who might be condemned unheard. The application was dismissed with costs to the respondent.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the applicant had demonstrated an arguable intended appeal and that its success would be rendered nugatory so as to warrant stay of execution or a temporary injunction under Rule 5(2)(b)
  2. 2.Whether the Court could grant a stay of a decree in respect of which no notice of appeal had been filed
  3. 3.Whether interim orders could issue in respect of parcels of land registered in the names of third parties not before the Court

Key legal issues

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01

Jurisdiction to stay a decree not covered by the notice of appeal

Holding

The first prayer for stay of the decree was incompetent because the notice of appeal was directed only at the ruling of 30th April 2010 and not at the judgment of 9th July 2009.

Reasoning

The Court held that it is the notice of appeal that confers jurisdiction on the Court. Since the notice of appeal identified only the ruling of Kasango, J of 30th April 2010 as the decision appealed against, the Court's Rule 5(2)(b) jurisdiction extended to that ruling only. It therefore could not grant a stay of a decree arising from a judgment against which no notice of appeal had been filed.

p. 3
02

Effect of execution of the decree and joinder of third-party registered owners

Holding

The second prayer for a temporary injunction failed because the decree had been executed: two parcels were registered in the names of third parties not before the Court, and the application had been overtaken by events.

Reasoning

The respondent demonstrated, and the High Court ruling of 18th May 2011 confirmed, that parcels 2037 and 2038 had been transferred to third parties not party to the application. The Court declined to make orders affecting non-parties, who might otherwise be condemned unheard. As to the remaining parcel 2036, the applicant did not specify in which parcel he sought to remain, having sought relief over all parcels. The application was thus overtaken by events and the discretion could not be exercised in his favour.

p. 3
03

The principles governing Rule 5(2)(b) applications

Holding

The applicant must show an arguable appeal and that refusal of the relief would render the appeal nugatory; the Court exercises original and unfettered discretion which must be exercised judiciously.

Reasoning

The Court restated the settled twin principles for Rule 5(2)(b) applications: arguability of the intended appeal and the nugatory aspect. It added that the discretion is original and unfettered but must not be exercised capriciously or on the whims of the court, so other aspects of the case may also be considered in the exercise of that discretion.

p. 3

Legal principles established

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  • The notice of appeal is what confers jurisdiction on the Court of Appeal, and a Rule 5(2)(b) application can only relate to the decision against which a notice of appeal has been filed.
  • Under Rule 5(2)(b) an applicant must demonstrate an arguable appeal and that the appeal's success will be rendered nugatory if the relief is refused, the discretion being exercised judiciously.
  • Courts cannot make orders binding non-parties who are not before the Court, since such persons would be condemned unheard.
  • Once a decree has been executed and the subject property transferred to third parties, a stay of execution can no longer be granted.

Court orders

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  1. 1.The notice of motion dated 8th June 2011 was dismissed
  2. 2.Costs of the application were awarded to the respondent

The bench

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

EO
majority
EG
majority
JO
majority
On appeal from
High Court of Kenya at Meru
H.C.C.C. No. 134 of 2003
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules

Relief refused

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Stay of execution of the decree in Meru HCC No. 134/03 pending the intended appeal

The notice of appeal challenged only the ruling of 30th April 2010, not the judgment of 9th July 2009, so the Court had no jurisdiction to stay the decree

p. 3

Temporary injunction restraining eviction, alienation or interference with the applicant's occupation of the three parcels

The decree had been executed; two parcels were registered in the names of third parties not before the Court, and the application was overtaken by events

p. 3

Costs

It is dismissed with costs to the respondent.

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.

In law the notice of appeal is what confers on to this Court jurisdiction.
p. 3Jurisdiction of the Court of Appeal on a Rule 5(2)(b) application
We cannot make precipitating orders against those who are not parties before us for the simple reason that they may be condemned unheard
p. 3Orders cannot bind non-parties
In the event, we cannot exercise our discretion in this notice of motion for reasons stated above. It is dismissed with costs to the respondent.
p. 3Final orders - dismissal of the application

Issues in the judgment

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minor

The judgment inconsistently renders counsel's name as 'Mr. Muchiri wa Gathoni' and later as 'Mr. Muchiri wa Gatheru' when describing the respondent's counsel's submissions.

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (6)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Murungi Kirigia v Catherine Kagwiria [2011] KECA 91 (KLR)", Case Analysis (2011). Civil Application No. NAI. 149 of 2011 (UR.99/2011). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2011/91/eng@2011-12-02

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