Godfrey Wanjala Wafula & another v Jairus Wakhungu Mulunda [2018] KECA 229 (KLR)
The bottom line
#Kenya's Court of Appeal refused to protect land occupants who had already withdrawn their own claim, showing withdrawal of a suit usually ends your legal rights.
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 of stay of execution, injunction and inhibition are not granted
Key legal issues
#Whether the intended appeal is arguable
The appeal was not arguable because the applicants had withdrawn their adverse possession suit with leave of the court and had no pending claim to the land in their own right
The applicants' claim to 2.3 acres by adverse possession was withdrawn after the 1st applicant had testified, and the leave to withdraw granted on 23rd February 2016 terminated that claim. The pending ELC Case No. 5 of 2016 was a distinct suit in which the applicants were not parties, and was in essence a relegation of a tribunal claim already quashed by the High Court. The appeal therefore could not confer title justifying continued occupation.
Whether the appeal would be rendered nugatory if stay is not granted
The appeal would not be rendered nugatory because the applicants have another piece of land and could regain possession if the appeal succeeds
The court found there was no pending claim by the applicants to the suit land other than the appeal itself. The respondent showed that the applicants' father was registered as proprietor of parcel Kimilili/Kibingei/699 comprising 2.8 hectares. Balancing the parties' rights, the court was not satisfied that eviction would render a successful appeal nugatory, since the applicants could regain possession in that event.
Legal principles established
#- An applicant under Rule 5(2)(b) must demonstrate that the appeal is arguable and that, unless the orders sought are granted, the appeal would be rendered nugatory
- A suit withdrawn with leave of the court is terminated; the applicants' withdrawn adverse-possession claim left them with no pending claim to the suit land in their own right
Court orders
#- 1.Application dismissed with costs to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya, Environment and Land Court at Bungoma
- HCC ELC No. 17 of 2013
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules
Relief refused
#Stay of execution of the judgment and decree of the ELC
Applicants did not demonstrate an arguable appeal or that the appeal would be rendered nugatory
Injunction restraining the respondent from evicting the applicants or disposing of the suit land
Applicants did not demonstrate that the appeal could confer title justifying continued occupation
Inhibition against registration of any dealings in the suit land
Not satisfied the appeal would be rendered nugatory; applicants could regain possession if the appeal succeeds
Costs
Application 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.
Before the Court can exercise its discretion in favour of the applicants, they are required to demonstrate inter alia that the appeal already filed is arguable and that unless the orders sought are granted, the appeal would be rendered nugatory.
the applicants not only filed a notice of withdrawal of the suit but also their advocate formally applied for leave to withdraw the suit which leave was granted by the trial court on 23rd February, 2016, thereby terminating the applicants' claim to the suit land
For the foregoing reasons and balancing the rights of the parties, it is not in the interest of justice to grant the orders sought. Accordingly, the application is dismissed with costs to the respondent.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Godfrey Wanjala Wafula & another v Jairus Wakhungu Mulunda [2018] KECA 229 (KLR)", Case Analysis (2018). Civil Application No. 51 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/229/eng@2018-10-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.