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Court of AppealDismissedCivil Application No. 93 of 2016· [2019] KECA 137 (KLR)

Catherine Koriko & 3 others v Evaline Rosa

Court of Appeal
20 November 2019
ASAsike-MakhandiaKIKiageODOdek
1,148 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to pause a land case because the applicants' appeal over a refused amendment had no realistic prospect of success.

What this practically means

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Executive summary

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The applicants sought a stay of proceedings in ELC Case No. 171 of 2011 at Kisii pending an intended appeal against a ruling of the Environment & Land Court (Mutungi J) dated 28th October 2016, which refused them leave to amend their statement of defence and counterclaim to introduce a claim of adverse possession, long after the respondent had testified, called witnesses and closed her case. The application was brought by notice of motion dated 23rd November 2016, supported by an affidavit that carelessly misdated the ruling. The respondent opposed the application as unarguable and a ploy to delay the dispute, noting that the facts supporting the proposed amendment had existed all along. The Court of Appeal at Kisumu (Asike-Makhandia, Kiage and Odek, JJ.A.) restated the settled principles for granting temporary relief pending an appeal: the applicant must show an arguable appeal and that the appeal will be rendered nugatory absent stay, satisfying both limbs. The Court, while stressing that its view could not bind the bench that would hear the intended appeal, found the intended appeal unarguable: the learned Judge had exercised his discretion judicially, appreciated the relevant law, considered nothing extraneous, and could not be said to have been plainly wrong. Failure on the arguability limb rendered consideration of the nugatory limb unnecessary. The motion was dismissed with costs to the respondent.

Key legal issues

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01

Whether the intended appeal was arguable

Holding

The intended appeal against the refusal of leave to amend pleadings was not arguable; the trial judge exercised his discretion judicially and was not plainly wrong

Reasoning

The amendments, sought long after the respondent had closed her case, attempted to introduce a new cause of action - abandoning a beneficiary claim for one in adverse possession despite the facts having existed all along. The judge appreciated the law on amendments, applied it to the facts, and allowed the amendment only at the cost of prejudice and injustice to the plaintiff.

p. 2
02

Whether the appeal would be rendered nugatory absent stay

Holding

Not determined, as failure on the first limb disposed of the application

Reasoning

Having failed on arguability, the applicants could not satisfy the cumulative test for stay. The court declined to engage in the nugatory inquiry as it would be futile.

p. 3

Legal principles established

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  • An applicant for stay of proceedings pending appeal must satisfy both the arguability limb and the nugatory limb

Court orders

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  1. 1.The motion dated 23rd November 2016 is dismissed
  2. 2.Costs of the application to the respondent
On appeal from
Environment & Land Court at Kisii
ELC Case No. 171 of 2011
Jurisdiction invoked
Inherent appellate jurisdiction to grant temporary relief pending an intended appeal from the Environment & Land Court

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, "Catherine Koriko & 3 others v Evaline Rosa", Case Analysis (2019). Civil Application No. 93 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/137/eng@2019-11-20

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