Charles Akelo Ong’wen v Beatrice Muthio Nzioka [2019] KECA 501 (KLR)
The bottom line
#Kenya's Court of Appeal refused to halt a land buyer's eviction, holding that money can compensate the seller if his appeal later succeeds.
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, unless stay of execution is granted, the intended appeal, if successful, would be rendered nugatory
- 3.Whether the Court should exercise its discretion under Rule 5(2)(b) to grant stay pending the intended appeal
Key legal issues
#Twin principles for stay under Rule 5(2)(b)
An applicant must demonstrate an arguable appeal and that the appeal would be rendered nugatory absent a stay; both conditions are assessed against the facts of each case
The court restated the settled Rule 5(2)(b) jurisprudence, citing Trust Bank Limited & Another v Investech Bank Limited & 3 Others, that the jurisdiction is original and discretionary and that the guiding principles must be considered against the facts and circumstances of each case. The applicant bore the burden of satisfying both limbs.
Arguability of the intended appeal
The court was not persuaded that the ground that the applicant was denied a hearing rendered the appeal arguable
The record and the respondent's affidavit showed the applicant was given multiple opportunities to present his case: he obtained two adjournments, failed to attend on 09.06.2014, yet cross-examined the respondent and filed written submissions. The trial judge considered his defence, witness statement and submissions to the extent of allowing a set-off, so the decision was rendered on merit.
Nugatory aspect
Because the transaction was commercial and the respondent gave an undertaking not to sell the property and showed ability to pay damages, the appeal would not be rendered nugatory by execution
The applicant had sold his own house for commercial gain, having entered a tenant purchase agreement with NSSF and a subsequent sale to the respondent. Any loss flowing from eviction would be compensable in damages; the respondent undertook not to sell the property and claimed financial capacity as a senior officer and director of a parastatal.
Legal principles established
#- An applicant for stay of execution or injunction under Rule 5(2)(b) must satisfy the twin conditions that the intended appeal is arguable and that, unless the order is granted, the appeal if successful will be rendered nugatory
- Where a sale transaction was commercial in nature, loss suffered by a successful appellant can be compensated by damages, so execution does not render the appeal nugatory
Court orders
#- 1.The application for stay of execution pending appeal is dismissed
- 2.The deposit of Ksh. 1 million paid by the applicant as security for costs is to be refunded to the applicant
- 3.The suit property should not be transferred to a third party until the appeal is heard and determined, per the respondent's undertaking
- 4.Costs of the application are awarded 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)
- ELC Case No. 272 of 2009
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules (application for stay of execution / injunction pending appeal)
Relief refused
#Stay of execution of the judgment of Nyamweya, J. dated 8th December 2014 pending the intended appeal
The applicant failed to establish that the intended appeal is arguable and that it would be rendered nugatory if the stay were not granted
Costs
The instant application is 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.
The upshot of the foregoing is that the instant application is dismissed with costs to the respondent. However as per the respondent's own undertaking we do order that the suit property should not be transferred to a third party until the appeal is heard and determined.
On the deposit paid by the applicant as security for costs, that remains his to be refunded as the application for stay is unsuccessful.
It is the discretion of the court to grant or refuse a stay but what has to be judged in every case is whether there are or not particular circumstances in the case to make an order staying execution.
Issues in the judgment
#The judgment inconsistently dates the agreement for sale: the narrative says it was entered into on 23rd January 2001, while the trial court's extracted orders refer to an agreement dated 23/1/2008, and the respondent's affidavit refers to a judgment dated 18.12.2014 in one passage and 08/12/2014 in another
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Charles Akelo Ong’wen v Beatrice Muthio Nzioka [2019] KECA 501 (KLR)", Case Analysis (2019). Civil Application No. 122 of 2019 (UR 116/2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/501/eng@2019-07-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.