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Court of AppealDismissedCivil Application No. 71 of 2016

Eliphas Cosmas Nyambaka v Charles Angucho Suchia [2017] KECA 678 (KLR)

Court of Appeal of Kenya
10 February 2017
WKW. KaranjaFAF. AzangalalaSKS. Gatembu Kairu
636 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to pause a land ownership judgment because the losing party never filed a notice of appeal or showed his case had merit.

What this practically means

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Executive summary

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The applicant, Eliphas Cosmas Nyambaka, sought a stay of execution of a judgment of the High Court at Bungoma (Mukunya, J) delivered on 27th July 2016 in H.C.C.C. No. 123 of 2010, by which the respondent, Charles Angucho Suchia, was decreed entitled to be registered as owner of Title Number Bungoma/Naitiri/506 (2.02 hectares) on the basis of adverse possession. The application was brought under rule 5(2)(b) of the Court of Appeal Rules. Before the Court of Appeal at Kisumu (Karanja, Azangalala and Gatembu, JJ.A), counsel for the applicant argued that adverse possession was not proved, that some witnesses were not heard, and that the intended appeal would be rendered nugatory. The respondent countered that the appeal was frivolous since the applicant had admitted before the High Court that he sold the suit property to the respondent, and that the litigation, begun in 1991, should end. Applying the settled twin test - arguability of the intended appeal and nugatory-ness if stay is refused - the court found that the applicant had not even placed the alleged notice of appeal on record, had not identified any error in the judgment, had advanced the claim about unheard witnesses only from the bar without supporting material, and had not demonstrated nugatory-ness. The application was accordingly dismissed with costs to the respondent. The ruling binds subordinate courts and the High Court on the requirement that a rule 5(2)(b) applicant demonstrate both limbs of the test and take the first procedural step of lodging a notice of 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
  2. 2.Whether, if the stay is not granted, the intended appeal will be rendered nugatory

Key legal issues

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01

Whether the applicant satisfied the twin principles for granting a stay of execution under rule 5(2)(b)

Holding

The application failed both limbs: arguability was not demonstrated because no notice of appeal was on record, no grounds of error were identified in the application or affidavit, and the claim from the bar that some witnesses were not heard was unsupported; nugatory-ness was not demonstrated either.

Reasoning

The court reiterated the settled two-pronged test from Ishmael Kagunyi Thande v HFCK. The applicant bore the burden of proving both limbs, but the alleged notice of appeal was not part of the record, the application and affidavit did not state where the judge went wrong, and counsel's assertion that witnesses were not heard was not borne out by the material before the court. Nugatory-ness was likewise not shown, so the application lacked merit and was dismissed with costs.

p. 2

Legal principles established

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  • An applicant under rule 5(2)(b) must satisfy the twin test: the appeal or intended appeal must be arguable, and the success of the appeal must be rendered nugatory unless the stay or injunction is granted.
  • An applicant for a stay pending appeal must demonstrate that he has taken the first step towards challenging the decision, namely lodging a notice of appeal, and must identify the errors in the judgment below to show arguability.

Court orders

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  1. 1.The application for stay of execution of the judgment of the High Court at Bungoma delivered on 27th July 2016 was dismissed
  2. 2.Costs of the application awarded to the respondent

The bench

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

WK
majority
FA
majority
SK
majority
On appeal from
High Court of Kenya at Bungoma
H.C.C.C. No. 123 of 2010
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules (jurisdiction to grant stay of execution and injunctions pending appeal)

Relief refused

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Stay of execution of the High Court decree that the respondent be registered as owner of Title Number Bungoma/Naitiri/506 (2.02 hectares) acquired by adverse possession

The applicant failed to demonstrate that the intended appeal is arguable or that it would be rendered nugatory if the stay was declined; he also failed to show he had lodged a notice of appeal.

p. 2

Costs

The application was dismissed with costs to the respondent.

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.

For an application to succeed he must not only show his appeal or intended appeal is arguable, but also that unless the court grants him an injunction or stay as the case may be, the success of the appeal will be rendered nugatory.
p. 2Twin test for stay of execution under rule 5(2)(b)
Quite apart from the omission by the applicant to demonstrate to us that he has taken the first step towards challenging the decision of the High Court by lodging a notice of appeal, he has not shown us in what respect(s) he considers the learned Judge to have erred so as to demonstrate that the intended appeal is arguable.
p. 2Requirement to lodge a notice of appeal and demonstrate arguability
Consequently, we do not consider that this application has merit. It is dismissed with costs to the respondent. Orders accordingly.
p. 2Final orders - dismissal of the application

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, "Eliphas Cosmas Nyambaka v Charles Angucho Suchia [2017] KECA 678 (KLR)", Case Analysis (2017). Civil Application No. 71 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/678/eng@2017-02-10

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