Chris Munga Bichage v Zablon Ongaga Mogaka & 2 others [2018] KECA 227 (KLR)
The bottom line
#The Court of Appeal blocked any sale or demolition on disputed Kisii land pending appeal, but refused a stay because a dismissed lawsuit has nothing to execute.
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 intended appeal is arguable
- 2.Whether the appeal would be rendered nugatory if the orders sought are not granted
- 3.Whether the judgment of the High Court dismissing the suit is capable of execution
- 4.Whether the status quo pertaining to the suit premises and the Register should be preserved pending the appeal
Key legal issues
#Test for granting stay of execution or preservation orders under Rule 5(2)(b)
The applicant must show the appeal is arguable and that it would be rendered nugatory absent the orders; on the facts, the grounds of appeal were arguable.
Rule 5(2)(b) relief is discretionary and conditional on two cumulative criteria: an arguable appeal and the nugatory-ness of the appeal if relief is withheld. The court examined the judgment and memorandum of appeal, noted that the trial court had found the applicant's wife a bona fide purchaser and the Tribunal's decision unlawful, and that the suit failed only on the question of the correct procedure for impeaching the Tribunal's decision — a point of law rendering the appeal arguable.
Whether a judgment dismissing a suit can be stayed
A bare dismissal with costs yields no executable decree; stay of execution is unavailable, but preservation of the Register is appropriate.
The trial court made no positive orders beyond costs, so there was nothing to execute. However, the substance of the second prayer was preservation of the status quo. Balancing the parties' rights, the court declined to keep the applicant in possession since the respondents were registered proprietors, but ordered an inhibition on the Register to prevent disposal that would render the appeal nugatory, and restrained demolition of the applicant's developments.
How a decision adopted from a Land Disputes Tribunal may be impeached
A decision of a court may be impeached on grounds of jurisdiction or fraud; the correct procedure for impeaching the Tribunal-based judgment is a point of law going to the arguability of the appeal.
The High Court had held the Tribunal's decision unlawful but declined to set it aside by way of declaration. The court observed that a decision may be impeached for jurisdiction or fraud, citing section 47 of the Evidence Act and Jonesco v. Beard, and held that whether the trial court applied the correct procedure was a point of law sufficient to make the appeal arguable. This was said in the stay context and was not conclusively determined.
Legal principles established
#- Before the Court grants relief under Rule 5(2)(b), the applicant must demonstrate that the appeal is arguable and that unless the orders are granted, the appeal would be rendered nugatory
- A judgment which merely dismisses a suit with costs is not capable of execution, and no stay of execution lies against it
Court orders
#- 1.The County Land Registrar to register an inhibition against Land Title No. Nyaribari/Chache/Keumbu/1702 inhibiting registration of any dealing until the determination of Civil Appeal No. 48 of 2018
- 2.The respondents restrained from demolishing or removing the applicant's developments on the land pending the determination of the appeal
- 3.Costs of the application to be costs in the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Kisii (Environment and Land Court)
- ELC No. 1190 of 2016
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules, 2010
Relief refused
#Stay of execution of the High Court judgment
The judgment merely dismissed the suit with costs; there is nothing capable of execution
Maintenance of status quo by leaving the applicant in possession of the suit land
It is not just to interfere with the rights of the registered proprietor pending the determination of the appeal
Costs
The costs of the application shall be costs in the 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.
Before the Court can exercise its discretion in his favour, he is required to demonstrate that the appeal is arguable and that unless the orders sought are granted the appeal already filed would be rendered nugatory.
the trial court merely dismissed the suit without granting any positive orders save the order for payment of the costs. The judgment of the Court is not capable of being executed.
Unless the status quo in respect of the Register is maintained, the respondents may dispose of the property thus rendering the appeal nugatory.
the County Land Registrar do register an inhibition against Land Title No. Nyaribari/Chache/Keumbu/1702 inhibiting registration of any dealing until the determination in Civil Appeal No. 48 of 2018.
Further the respondents are also restrained from demolishing or removing the applicant’s developments on the land pending the determination of the appeal.
Issues in the judgment
#The judgment states the applicant filed Civil Case No. 1190 of 2016 in 2006, which is internally inconsistent with the case number
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Chris Munga Bichage v Zablon Ongaga Mogaka & 2 others [2018] KECA 227 (KLR)", Case Analysis (2018). Civil Appeal (Application) No. 47 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/227/eng@2018-10-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.