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Case Brief · caselaw.co.ke
Court of AppealAllowedCivil Application No. NAI. 55 of 2017

Helida Asiko v Maracelin A Odawa & 2 others [2017] KECA 348 (KLR)

Court of Appeal
27 July 2017
1,581 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 halted eviction and High Court proceedings, ruling that even one arguable appeal issue can protect someone facing eviction.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Kisumu on a Notice of Motion lodged on 19th June 2017 by Helida Asiko under rule 5(2)(b) of the Court of Appeal Rules, seeking an injunction restraining the respondents from occupying or interfering with land parcel Kisumu/Muhoroni/1630 alias Kisumu/Muhoroni/1040 pending the application and the intended appeal, and a stay of further proceedings before the High Court following the dismissal of her suit by Kaniaru, J. on 8th September 2016. The applicant claimed she had been allocated the land in 1974 and that the Lands Office fraudulently changed the parcel number and transferred it to the 1st respondent. Applying the settled two-limb test from Malcom Bell v Hon. Daniel Torotich Arap Moi, the court found the intended appeal arguable - a single arguable issue on the alleged failure by the learned judge to evaluate the evidence sufficed - and found the second limb satisfied because the applicant was in occupation and would be evicted before the appeal was determined, rendering a successful appeal nugatory, while the respondent would suffer no undue prejudice from maintenance of the status quo. The court granted the injunction and stay in terms of the motion, directed that the appeal be filed within 60 days, and ordered costs to be in the intended appeal. The decision does not disturb the High Court judgment; it preserves the position pending the appeal.

Questions the Court framed

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

  1. 1.Whether the intended appeal is arguable (not frivolous)
  2. 2.Whether the appeal, if successful, would be rendered nugatory unless an injunction and stay of proceedings are granted

Key legal issues

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01

Whether the intended appeal was arguable

Holding

The court found the appeal arguable, since the complaint that the learned judge failed to evaluate and analyse the evidence on the alleged fraudulent change of parcel numbers was not frivolous.

Reasoning

The applicant contended that the judge failed to evaluate the evidence on the alleged fraudulent change of the parcel number from Kisumu/Muhoroni/1630 to Kisumu/Muhoroni/1040 and misapprehended the evidence in concluding that the suit property belonged to the government. The court held such a complaint could not be dismissed as frivolous, and citing Chris Bichage v Richard Nyagaka Tongi, that one arguable issue suffices.

p. 3
02

Whether the appeal would be rendered nugatory if stay and injunction were not granted

Holding

Since the applicant was in occupation and faced eviction, the appeal would be rendered nugatory if she were evicted before its determination; the respondent would suffer no undue prejudice as the property would still exist and she could evict the applicant if she succeeded.

Reasoning

The court observed the applicant was in occupation of the suit property and faced a threatening letter demanding she vacate and possible eviction. Eviction before the appeal was heard would render a successful appeal nugatory. Conversely, maintaining the status quo prejudiced the respondent little, since the property would remain in existence and the respondent could evict the applicant if the appeal failed.

p. 3

Legal principles established

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  • To succeed on a rule 5(2)(b) application, an applicant must demonstrate both that the intended appeal is arguable and that it would be rendered nugatory if the orders sought are not granted.
  • A single arguable issue suffices to satisfy the first principle in a rule 5(2)(b) application.

Court orders

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  1. 1.An injunction and a stay of proceedings in the High Court in terms of the Notice of Motion lodged on 19th June 2017
  2. 2.The appeal to be filed within 60 days from the date of the ruling
  3. 3.Costs to be in the intended appeal

The bench

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

majority
majority
majority
On appeal from
High Court at Kisumu (Environment and Land Court)
Environment and Land Court No. 80 of 2015
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules - injunction and stay pending 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.

Accordingly, we grant, an injunction and a stay of proceedings in the High Court in terms of the Notice of Motion lodged on 19th June 2017. We further order that the appeal be filed within 60 days from the date hereof and that costs be in the intended appeal.
p. 3Final orders - injunction and stay granted
Two main principles guide the court in its exercise of that discretion, namely for the applicant to succeed, he must not only show he has an arguable appeal or that his intended appeal is not frivolous but also that unless granted an injunction, stay of decree or further proceedings, as the case may be, his appeal or intended appeal, if successful will be rendered nugatory.
p. 3Rule 5(2)(b) principles
We think it prudent for the current prevailing situation on the suit property to be maintained pending the hearing and determination of the intended appeal.
p. 3Preservation of status quo pending appeal

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, "Helida Asiko v Maracelin A Odawa & 2 others [2017] KECA 348 (KLR)", Case Analysis (2017). Civil Application No. NAI. 55 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/348/eng@2017-07-27

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