William Lerikan Konchellah & 1 other v Julius Tabarai Ole Maito Tampushi
The bottom line
#Kenya's Court of Appeal refused to stop execution of a land judgment because eviction had already been completed — waiting too long to seek a stay proved fatal.
What this practically means
#Executive summary
#Key legal issues
#The twin principles governing applications under Rule 5(2)(b)
Both limbs - arguability and nugatory-ness - must be satisfied; satisfying only one is insufficient.
The court restated the settled principles from Reliance Bank Ltd v Norlake Investments Ltd: the applicant must show the appeal or intended appeal is not frivolous and that, if the application is not granted and the appeal succeeds, that success would be rendered nugatory. Both limbs must be proved together before stay orders can issue.
Whether the appeal was arguable
The appeal was arguable, particularly on the jurisdictional challenge under Section 21 of the Registered Land Act and on whether the matter was a boundary dispute or a claim for title.
The court found the jurisdictional ground invoking Section 21 of the repealed Registered Land Act to be arguable, as was the characterisation of the dispute as a boundary dispute or a claim for title, given that twelve acres of land were in issue. Even one arguable ground suffices, though arguability does not guarantee success.
Whether the appeal's success would be rendered nugatory
The nugatory limb failed because execution had already been completed; there was nothing left to stay.
The respondent demonstrated, via an auctioneer's report and an eviction report, that full eviction had taken place following the judgment. The applicants did not show any substantive part of execution still pending. A stay order would be in vain, and the second limb of the Rule 5(2)(b) test therefore failed.
Legal principles established
#- An applicant under Rule 5(2)(b) must satisfy both limbs - an arguable appeal and that its success would be rendered nugatory - and proof of one only is insufficient.
- An arguable point is not one that must succeed; it is one that needs to be ventilated by the court and may be decided either way.
- Courts do not act in vain; where execution has been fully completed, a stay of execution cannot issue.
Court orders
#- 1.The application is dismissed with costs to the respondent
- On appeal from
- High Court of Kenya at Kisii
- H.C.C. No. 315 of 2010
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "William Lerikan Konchellah & 1 other v Julius Tabarai Ole Maito Tampushi", Case Analysis (2014). Civil Application No. 4 of 2014 (UR 2/2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/399/eng@2014-09-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.