James Thomas Andafu v Joseph Makokha Akhulunya [2018] KECA 245 (KLR)
The bottom line
#The Court of Appeal halted the transfer of disputed land, ruling that cancelling the title would make the owner's appeal pointless before it could be heard.
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, if the orders of the trial court are executed, the intended appeal will be rendered nugatory
Key legal issues
#Whether the intended appeal was arguable under Rule 5(2)(b)
The Court found the appeal arguable, pointing to the question whether the respondent's adverse possession claim was proved on a balance of probabilities, without delving into the merits.
The Court applied the settled principle that an arguable ground need not succeed, only be non-frivolous, and that a single arguable ground suffices. It identified the adverse possession question as a candidate ground while expressly declining to examine the merits, which belong to the full bench hearing the appeal.
Whether execution of the judgment would render the intended appeal nugatory
The Court held that execution, particularly cancellation of the title deed and transfer of the land, would render the appeal nugatory and granted a stay to preserve the status quo pending appeal.
Relying on Reliance Bank Ltd v Norlake Investments Ltd, the Court weighed the conflicting claims of both sides and found that the applicant faced imminent execution proceedings. It concluded that the cancellation of the title deed and transfer of the suit property to the respondent should be stayed to preserve the status quo pending the appeal.
Legal principles established
#- Rule 5(2)(b) jurisdiction is original and discretionary and does not constitute an appeal from the judge's discretion.
- An arguable ground need not succeed; a single non-frivolous ground suffices.
- Whether an appeal will be rendered nugatory is assessed case by case, weighing the conflicting claims of both sides.
Court orders
#- 1.A stay of execution of the Judgment and Orders of 17th May, 2018 is granted, and the cancellation of the title Deed and transfer to the respondent of title No. Butsotso/Indangalasia/248 is stayed pending the hearing and determination of the intended appeal
- 2.Costs of this application to abide by the outcome of the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the judgment
Wrote the judgment
- On appeal from
- Environment and Land Court at Kakamega
- ELC Case No. 619 of 2014 (Formerly CC No. 41 "B" of 2006 (O.S))
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules
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.
A stay of execution of the Judgment and Orders of 17 th May, 2018 is granted, and the cancellation of the title Deed and transfer to the respondent of title No. Butsotso/Indangalasia/248 is stayed pending the hearing and determination of the intended appeal.
Costs of this application to abide by the outcome of the appeal.
a single arguable ground of appeal would suffice to meet the threshold that an intended appeal is arguable.
To refuse to grant an order of stay to the applicant would cause to it such hardships as would be out of proportion to any suffering the respondent might undergo while waiting for the applicants appeal to be heard and determined.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "James Thomas Andafu v Joseph Makokha Akhulunya [2018] KECA 245 (KLR)", Case Analysis (2018). Civil Application No. 61 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/245/eng@2018-10-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.