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Court of AppealPartially AllowedCivil Appeal No. 31 of 2013 (UR 21/2013)

Rebecca Moraa Ochi & 43 others v Kiogoro Land Disputes Tribunal & 10 others [2013] KECA 446 (KLR)

Court of Appeal of Kenya
26 July 2013
1,703 words in judgment
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The bottom line

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Kenya's Court of Appeal halted execution of a land tribunal's sub-division order because the wrong people were sued over a deceased co-owner's share.

What this practically means

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Executive summary

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This interlocutory ruling of the Court of Appeal at Nairobi (Mwera, Ouko and Murgor JJ.A) determined a motion dated February 2013 seeking stay of execution and stay of further proceedings pending an intended appeal against the ruling of Sitati J. delivered on 31st January 2013 in Kisii H.C. Misc. Civil Application No. 81 of 2011. The underlying dispute concerned parcel NYARIBARI/KEUMBO/900, jointly purchased in 1966 in three undivided one-third shares by Makori Samarere, Ochi Gekonge and Kenyariri Kenyariri. After the deaths of the latter two, Samarere obtained orders from the Kiogoro Land Disputes Tribunal declaring him entitled to one-third and directing survey, sub-division and rectification of the registry index map. The widows and 43 others sought judicial review to quash those orders, but the High Court found the Tribunal had jurisdiction under section 3(1)(a) of the repealed Land Tribunals Act, that natural justice was complied with, and dismissed the application while directing that the Tribunal's orders be implemented. The Court of Appeal held that although a bare dismissal cannot be stayed, the judge's positive order permitting execution was capable of being stayed; that Rule 5(2)(b) requires no exhibited decree; and that the applicants had a solitary arguable ground - the Tribunal claim was brought against the widows in their personal capacity rather than as personal representatives of the deceased co-owners - and that survey and sub-division would irreversibly alter the land and render any success nugatory. Stay was granted in terms of prayer 2, with costs in the appeal. The application thus succeeded.

Questions the Court framed

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

  1. 1.Whether an application for stay lies where the High Court dismissed the judicial review application but issued a positive order permitting execution of the Tribunal's orders
  2. 2.Whether the applicants were required to exhibit certified copies of decrees in support of the application
  3. 3.Whether the applicants had an arguable appeal
  4. 4.Whether the intended appeal would be rendered nugatory if stay was not granted

Key legal issues

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01

Whether the stay application was competent notwithstanding the dismissal of the judicial review application

Holding

It was competent because the learned judge issued a positive order permitting the respondents to implement the Tribunal's decision, which is capable of execution and therefore capable of being stayed

Reasoning

Although a bare dismissal cannot be stayed, Sitati J. went beyond dismissing the application and directed that the Tribunal's orders be implemented unless otherwise ordered. That direction is a positive order capable of execution, so a stay under Rule 5(2)(b) lies against it. The court distinguished the general bar on staying dismissal orders.

p. 3
02

Whether failure to exhibit certified decrees was fatal to the application

Holding

It was not; Rule 5(2)(b) imposes no requirement to exhibit decrees

Reasoning

The court held that the applicant need only rely on such evidence as enables satisfaction of the twin principles of an arguable appeal and that the appeal, if successful, would be rendered nugatory. The preliminary objection on missing decrees therefore failed.

p. 3
03

Whether the applicants had an arguable appeal

Holding

Yes; at least one solitary arguable ground sufficed - the Tribunal claim was brought against the widows not as personal representatives of the deceased co-owners

Reasoning

The court identified one arguable ground: the claim before the Tribunal was filed against the widows of the two deceased co-owners in their own names, not as personal representatives, yet the Tribunal and the judge were aware of this. The judge made no finding on it despite it being a ground of review. Since only a solitary arguable ground is needed, the principle was satisfied.

p. 3
04

Whether the appeal would be rendered nugatory if stay was refused

Holding

Yes; survey and sub-division would irreversibly alter the character of the land and destroy permanent developments

Reasoning

If the survey ordered by the Tribunal and confirmed by the High Court proceeded, the character of the suit land would be considerably altered. The applicants and interested parties had lived on the property for over 40 years with permanent developments that could be irreversibly demolished during survey and sub-division, rendering any eventual success nugatory.

p. 4

Legal principles established

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  • An application for stay under Rule 5(2)(b) does not lie where the order sought to be stayed is a dismissal incapable of execution; only a positive order capable of execution may be stayed
  • Under Rule 5(2)(b) there is no requirement to exhibit a certified copy of the decree; the applicant need only place sufficient evidence before the court on the twin principles
  • An applicant under Rule 5(2)(b) need only demonstrate a single arguable ground, and both the arguability and nugatory-justice principles must be satisfied
  • Only the personal representatives of a deceased person can be sued in respect of a dispute involving that deceased person

Court orders

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  1. 1.Stay of execution of the orders of the Kiogoro Land Disputes Tribunal and stay of further proceedings in Kisii H.C. Misc. Civil Application No. 81 of 2011 pending the hearing and determination of the intended appeal, in terms of prayer 2 of the notice of motion
  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.

majority
William Ouko
W. OUKOJA
Currently serving
majority
majority
On appeal from
High Court of Kenya at Kisii
Misc. Civil Application No. 81 of 2011
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules (interlocutory application for stay pending intended appeal)

Relief refused

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Stay of proceedings of Kiogoro Land Disputes Tribunal case No. 4 of 2011

Such proceedings had been concluded and the objection was raised that the prayer was unattainable; the court noted the operative prayer related to the High Court file

p. 3

Costs

Costs will be 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.

That is a positive order capable of execution and therefore may be stayed.
p. 3competence of stay application against a positive order embedded in a dismissal
under Rule 5 (2) (b) of the Court's Rules, there is no requirement that copies of the decree be exhibited.
p. 3Rule 5(2)(b) practice - no decree need be exhibited
The second factor in considering an application for stay under Rule 5 (2) (b) is that, the applicant need only show a solitary arguable ground. The third consideration is that both principles must be satisfied.
p. 3test for stay pending appeal
It is established that only one’s personal representatives can be sued in respect of a dispute involving a deceased person.
p. 3suing personal representatives
We accordingly order that there will be a stay in terms of prayer 2 of the notice of motion dated 12th February 2013.
p. 4final orders

Issues in the judgment

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minor

The notice of motion is variously described as dated 13th February 2013 and 12th February 2013 within the same ruling

minor

The Tribunal's orders quote the land parcel as Nyaribari Keumbu/960 while the facts state the parcel as NYARIBARI/KEUMBO/900

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, "Rebecca Moraa Ochi & 43 others v Kiogoro Land Disputes Tribunal & 10 others [2013] KECA 446 (KLR)", Case Analysis (2013). Civil Appeal No. 31 of 2013 (UR 21/2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2013/446/eng@2013-07-26

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