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Court of AppealAllowedCivil Application No. 87 of 2016 (UR 51/2016)

Richard Membo Guya t/a Ramogi Chemist & 3 others v Charles Chog Njoroge & another [2017] KECA 5 (KLR)

Court of Appeal of Kenya
20 July 2017
1,998 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal stopped an eviction ordered before a full hearing, ruling nobody should lose land without being heard.

What this practically means

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Executive summary

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This is a single-judgment-of-the-court ruling of the Court of Appeal at Kisumu on a Notice of Motion under Rule 5(2)(b) of the Court of Appeal Rules, 2010, seeking stay of execution of, and stay of further proceedings pursuant to, a ruling of the Environment and Land Court at Kisumu (Kibunja J) dated 28th September 2016. In that ruling, the learned Judge, without hearing viva voce evidence, dismissed the applicants' application for joinder and stay of proceedings and ordered the 1st applicant to vacate, and in default be evicted from, the suit property, Kisumu Municipality Block 4/883, with demolition of structures. The applicants, asserting an arguable appeal and nugatory effect, sought stay pending the intended appeal. The respondents opposed, contending inter alia that the 2nd applicant lacked standing having been denied joinder. The Court expressly declined to determine the standing issue, holding that the notice of appeal sufficed to ground its jurisdiction at that stage. Applying the settled twin conjunctive test under Rule 5(2)(b), the Court found the first limb satisfied: it was arguable that the learned Judge erred in making definitive orders on ownership, including eviction and demolition, at an interlocutory stage without a full hearing. On the second limb, the Court held that eviction of the applicants before the main suit was heard would render any successful appeal nugatory, as they would have been condemned unheard, and that preservation of the property pending determination would prejudice no party. The application was allowed in terms of prayers 3 and 4, with costs in the intended appeal. The ruling was delivered pursuant to Rule 32(3), Azangalala JA having retired.

Questions the Court framed

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

  1. 1.Whether the applicants have an arguable appeal for purposes of Rule 5(2)(b)
  2. 2.Whether the intended appeal would be rendered nugatory if stay of execution and of further proceedings is not granted
  3. 3.Whether the 2nd applicant has standing before the Court (expressly eschewed for determination at this stage)

Key legal issues

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01

Whether definitive orders as to ownership and eviction could properly be made at an interlocutory stage without a full hearing

Holding

The Court found it arguable that the learned Judge was not justified in making definitive orders on ownership of the property at an interlocutory stage before hearing the main suit, thereby satisfying the first limb.

Reasoning

The Court questioned whether the settled law on competing titles between a TOL holder and a title holder disentitles a party from being heard before drastic orders such as eviction are made. It held that a party has a right to ventilate its argument before its suit is summarily determined in an interlocutory application, and that this raised an arguable point sufficient for the first limb.

p. 3
02

Whether the intended appeal would be rendered nugatory if stay is not granted

Holding

The Court held the appeal would be rendered nugatory if the applicants were evicted unheard, since the main suit had yet to be heard, and preservation of the property would prejudice no one.

Reasoning

Applying the nugatory principle, the Court reasoned that eviction and demolition would be effectively irreversible and would leave the applicants condemned unheard if the appeal succeeded. The 1st applicant was in possession; preservation would cause no prejudice, and should the appeal fail, the 2nd respondent could take possession.

p. 3
03

Standing of the 2nd applicant in the stay application

Holding

The Court declined to determine the question of the 2nd applicant's standing, holding it was not for determination at that stage and that the notice of appeal grounded its jurisdiction.

Reasoning

Although the respondents argued that the 2nd applicant, having been denied joinder and having not appealed that decision, was not a party, the Court expressly eschewed the issue, holding that at the interlocutory stage it needed only a notice of appeal to ground its Rule 5(2)(b) jurisdiction; the validity of the notice is a matter for the relevant forum.

p. 3

Legal principles established

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  • The twin requirements under Rule 5(2)(b) — an arguable appeal and nugatory effect — are conjunctive; an applicant must establish both.
  • A single arguable point suffices to satisfy the first limb of the Rule 5(2)(b) test.

Court orders

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  1. 1.Stay of execution of the Ruling/order of the Environment and Land Court dated 28th September 2016 pending the lodging, hearing and determination of the intended appeal (prayer 3 granted)
  2. 2.Stay of all further proceedings in Kisumu HCC ELC Case No. 15 of 2015 pending the lodging, hearing and determination of the intended appeal (prayer 4 granted)
  3. 3.Costs of the application to be costs in the intended appeal

The bench

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

majority

Wrote the judgment

majority
majority

Wrote the judgment

On appeal from
Environment and Land Court at Kisumu
ELC Misc Application No. 15 of 2015
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules, 2010

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 conclusion therefore, we find that the first applicant is entitled to the prayers sought. In the circumstances, this application is hereby allowed in terms in terms of prayers 3 and 4. Costs in the intended appeal.
p. 3Final orders - stay of execution and of proceedings granted
These two principles are conjunctive and a party seeking to succeed in its application must establish the two. Establishing only one will not suffice.
p. 3Conjunctive nature of the Rule 5(2)(b) test
Whether or not an appeal will be rendered nugatory depends on whether or not what is sought to be stayed if allowed to happen is reversible; or if it is not reversible where damages will reasonably compensate the party aggrieved.
p. 3Definition of the nugatory principle
We therefore find that the first limb has been established.
p. 3Arguability of intended appeal

Issues in the judgment

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minor

The ruling records the coram as Karanja, Azangalala & Gatembu JJ.A and the delivery as pursuant to Rule 32(3) because Azangalala JA had retired, yet the certification block at the end is signed only by W. Karanja and S. Gatembu Kairu; the judgment text itself does not explain the composition discrepancy beyond the Rule 32(3) note.

minor

The judgment inconsistently refers to the interlocutory application as dated 26th January 2016 in one passage and 26th January 2015 in the quoted order on costs.

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, "Richard Membo Guya t/a Ramogi Chemist & 3 others v Charles Chog Njoroge & another [2017] KECA 5 (KLR)", Case Analysis (2017). Civil Application No. 87 of 2016 (UR 51/2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/5/eng@2017-07-20

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