Joshua Nyamache T Omasire v Charles Kinanga Maena [2014] KECA 585 (KLR)
The bottom line
#The Court of Appeal refused to stop enforcement of a land judgment because the applicant had already been evicted and showed no evidence the land would be sold or transferred.
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 demonstrated that the intended appeal (Civil Appeal No. 151 of 2012) is arguable
- 2.Whether the appeal, if successful, would be rendered nugatory if the orders of stay of execution and injunction sought are not granted
- 3.Whether the application was overtaken by events following the applicant's eviction from the disputed land on 20th March, 2014
Key legal issues
#The twin principles for grant of stay of execution or injunction pending appeal under Rule 5(2)(b)
The applicant must satisfy both limbs - an arguable appeal and nugatory-ness if stay is refused. The applicant satisfied neither.
The court restated the established Rule 5(2)(b) test as drawn from Reliance Bank Limited v Norlake Investments Limited and Silvester v Chesoni. On arguability, the applicant only attacked the learned judge's assessment of witness credibility and the limitation of the counter-claim, which the court did not find sufficient. On nugatory-ness, there was no evidence by affidavit or otherwise that the respondent intended to sell or alienate the land; mere counsel submissions of possible alienation could not sustain the limb.
Effect of the applicant's prior eviction on an application for stay of execution and injunction
The applicant having been evicted on 20th March, 2014 pursuant to an eviction order issued by the High Court on 13th March, 2014 and implemented by the nominated auctioneers, the relief sought was overtaken by events and legally untenable.
The respondent deponed that the applicant was evicted on 20th March, 2014, annexing the eviction order, the order on provision of security and the auctioneer's return confirming implementation. The court found this evidence uncontroverted. Since the applicant had ceased occupation and the respondent was in possession, orders restraining interference or alienation would serve no practical purpose and could not preserve the substratum of the appeal.
Legal principles established
#- On an application for stay of execution and injunction pending appeal under Rule 5(2)(b), the applicant must demonstrate both that the appeal is arguable and that, if successful, it would be rendered nugatory unless the orders are granted; failure to satisfy either limb is fatal.
- A party who has been evicted in execution of a lawful court order cannot obtain a stay of that execution, the relief having been overtaken by events; a court will not grant orders of no practical effect.
Court orders
#- 1.The Notice of Motion dated 26th February, 2014 is dismissed
- 2.Costs of the application are awarded to the respondent
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 Kisii
- Kisii HCC No. 153 of 2003
- Jurisdiction invoked
- Sections 3A and 3B of the Appellate Jurisdiction Act and Rules 5(2)(b) and 47 of the Court of Appeal Rules
Relief refused
#Stay of execution of the High Court judgment and decree in Kisii HCC No. 153 of 2003 pending the hearing and determination of Civil Appeal No. 151 of 2012
The applicant failed to satisfy either limb of the test for stay - arguability and nugatory-ness - and the application was overtaken by events since the applicant had already been evicted pursuant to valid High Court orders
Injunction restraining the respondent, his agents and employees from entering, destroying, alienating or charging the entire property comprising Gesima Settlement/96 (prayer 5 of the Motion)
The applicant had already been evicted and was no longer in occupation, and no evidence existed of any intended disposition of the land by the respondent
Costs
The application was dismissed with costs to the respondent.
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 applications such as the application before us this Court is concerned with a determination whether the applicant is able to demonstrate that the appeal is arguable and that the appeal, if successful, would be rendered nugatory if the orders sought are not granted
There is uncontroverted evidence that the applicant was evicted from the disputed land and there is no evidence, by affidavit or otherwise, that the respondent intends to dispose of the land in any way at all.
The applicant has not satisfied either limb of the principles on which we exercise jurisdiction in an application such as this one. The application has no merit and we dismiss it with costs to the respondent.
Issues in the judgment
#The record does not state which judge authored the ruling; the coram lists three Judges of Appeal and the ruling is expressed as that of the whole court, yet the certification appears to attribute a signature line to J. W. Onyango Otieno. The authorship field is therefore an inference from the signature block ordering rather than an express statement.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Joshua Nyamache T Omasire v Charles Kinanga Maena [2014] KECA 585 (KLR)", Case Analysis (2014). Civil Application No. 8 of 2014 (UR 4/2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/585/eng@2014-05-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.