Jedidah Wambui Karanja & 2 others v Peter Ndirangu Kinuthia (Civil Application 10 of 2014) (Civ) [2014] KECA 573 (KLR)
The bottom line
#Kenya's Court of Appeal refused to halt execution of a land judgment because the losing side was already off the land, so their appeal could still succeed later.
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 applicants have an arguable appeal
- 2.Whether, if stay of execution is denied, the intended appeal will be rendered nugatory
Key legal issues
#Arguability of the intended appeal
The applicants had an arguable appeal because they intended to challenge the trial court's finding that Plot No. 1705 is a distinct and separate parcel from Plot No. 805
The trial judge, after considering the evidence, found that Plot No. 1705 was not a fictitious parcel fraudulently curved out of Plot No. 805 but a distinct parcel belonging to the respondent. Since the applicants intended to challenge that finding on appeal, the threshold of arguability was met. The court cautioned that arguability does not mean the appeal will necessarily succeed.
Whether the appeal would be rendered nugatory if stay is denied
The intended appeal would not be rendered nugatory because the parties already occupy separate and distinct portions, and if the appeal succeeds the land remains available and the respondent can be evicted from Plot No. 1705
The applicants did not dispute that they had been evicted from Plot No. 1705 and that the respondent had taken possession. Whichever way the appeal was decided, the land would still be there; granting stay would merely evict the respondent from land he already occupied. Hence the nugatory test failed and stay could not issue.
Legal principles established
#- An application under Rule 5(2)(b) of the Court of Appeal Rules must satisfy the twin tests of an arguable appeal and that the appeal will be rendered nugatory if stay is denied
- An arguable appeal is not one that will necessarily succeed
Court orders
#- 1.Dismissal of the applicants' notice of motion dated 28th January 2014 seeking stay of execution
- 2.Costs of the application to be in the intended appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- H.C.S.C. No. 1678 of 2002
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules
Relief refused
#Stay of execution of the decree arising from the judgment of Waweru, J
The applicants failed to demonstrate that the intended appeal, if successful, would be rendered nugatory, as they had already been evicted and the respondent was in possession of the distinct portion in dispute
Costs
Costs of this application shall be in the intended appeal
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.
for an application under Rule 5(2)(b) of the Court of Appeal Rules to succeed, the applicant has to satisfy the Court that he has an arguable appeal and that if stay is denied, his appeal, if successful, will be rendered nugatory.
an arguable appeal is not one that will necessarily succeed. So the applicants should not misunderstand us and start celebrating that their appeal will necessarily succeed. It may or may not succeed.
The applicants having failed to satisfy us that if stay is not granted their intended appeal will be rendered nugatory, we hereby dismiss their notice of motion dated 28 th January, 2014. Costs of this application shall be in the intended appeal.
Issues in the judgment
#The judgment states the High Court judgment was delivered on 18th December 2013 in one place but 18th January 2014 in others
The judgment refers to the execution of the decree arising from a judgment dated 18th January, 2013, an apparent typographical inconsistency with the dates elsewhere
The respondent's counsel's name is rendered inconsistently ('Ms Mate') and the judge's name as 'Weweru' in one passage
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Jedidah Wambui Karanja & 2 others v Peter Ndirangu Kinuthia (Civil Application 10 of 2014) (Civ) [2014] KECA 573 (KLR)", Case Analysis (2014). Civil Application No. Nai. 10 of 2014 (UR.5/2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/573/eng@2014-05-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.