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Court of AppealAllowedCivil Application No. 95 of 2018

Jackton Ogula Aduogo v Francis Odhiambo Oturu (suing as the administrator of the Estate of the Late Samwel Oturu Aduogo) [2019] KECA 622 (KLR)

Court of Appeal of Kenya
19 June 2019
1,295 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~5 min to read original · ~4 min brief

The bottom line

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The Court of Appeal stopped a family's eviction from disputed Kisumu land until the appeal is heard, but only if they file it within 60 days.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Kisumu (Githinji, Okwengu and J. Mohammed, JJ.A) on a notice of motion dated 24th October 2018 by Jackton Ogula Aduogo seeking stay of execution of the judgment, decree and orders of the Environment and Land Court at Kisumu (Kibunja J.) dated 22nd November 2017 in ELC No. 830 of 2015, pending an intended appeal. The suit land was Kisumu/Bar/1762, which the respondent, as administrator of the estate of the late Samuel Oturu Aduogo, claimed the applicant had irregularly subdivided, with one parcel registered in his own name. The decree nullified the subdivision, cancelled the new titles Kisumu/Bar/2138 and 2139, and ordered eviction of the applicant and his family. Applying the settled twin test under Rule 5(2)(b) of the Court of Appeal Rules - arguability and the nugatory aspect - the Court found the intended appeal raised arguable issues, including the respondent's locus standi and the existence of a trust. On the nugatory limb, the Court held that eviction could result in possession falling to third parties, placing the subject matter at risk. The Court rejected the respondent's complaints of inordinate delay and abuse of process, holding that the applicant had first pursued stay in the trial court, whose ruling issued on 11th October 2018, and that the Rule 5(2)(b) jurisdiction is original and unaffected by a lower court's dismissal of a similar application. The Court allowed the motion, granted stay pending the intended appeal, ordered costs of the motion to be costs in the appeal, and directed filing of the memorandum and record of appeal within 60 days, failing which the stay would lapse. The ruling binds subordinate courts and the Environment and Land Court on the twin test and the original nature of Rule 5(2)(b) jurisdiction.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the intended appeal raises arguable issues
  2. 2.Whether, absent stay, the intended appeal would be rendered nugatory
  3. 3.Whether the application was brought after inordinate delay or was an abuse of process given the earlier dismissal of a similar application in the trial court

Key legal issues

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Arguability of the intended appeal

Holding

The intended appeal raised arguable issues, notably the respondent's locus standi and the existence of a trust

Reasoning

The memorandum of appeal raised several grounds, including the respondent's locus standi to prosecute the suit and the existence of a trust. The Court found these issues pertinent and arguable and not frivolous, thus satisfying the first limb of the Rule 5(2)(b) test.

p. 2
02

Nugatory aspect

Holding

Execution of the decree would render the intended appeal nugatory, as it would evict the applicant and risk the suit property passing to third parties

Reasoning

The decree provided for nullification of the subdivision, cancellation of new titles, and eviction of the applicant and his family. If the applicant lost possession, it might fall into the hands of a third party, putting the subject matter of the suit at risk and causing irreparable loss.

p. 2
03

Effect of a prior dismissed stay application in the trial court and delay

Holding

The delay was satisfactorily explained, and the prior dismissal of a similar application in the trial court does not bar the Rule 5(2)(b) application

Reasoning

The applicant had first sought stay in the trial court, whose ruling was delivered on 11th October 2018, after which he filed the present application. The Court held its Rule 5(2)(b) jurisdiction is original and unaffected by the lower court's dismissal of a similar application.

p. 2

Legal principles established

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  • An applicant under Rule 5(2)(b) must satisfy the twin principles of arguability and the nugatory aspect
  • The Court of Appeal's jurisdiction under Rule 5(2)(b) is an original jurisdiction invoked by filing a notice of appeal, and is not affected by the dismissal of a similar application by the lower court

Court orders

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  1. 1.Stay of execution of the judgment, decree and orders of the Environment and Land Court dated 22nd November 2017 granted pending the hearing and determination of the intended appeal
  2. 2.Costs of the motion to be costs in the appeal
  3. 3.Applicant to file his memorandum of appeal and record of appeal within 60 days from the date of the ruling, failing which the order of stay of execution shall lapse

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
majority
On appeal from
Environment and Land Court of Kenya at Kisumu
ELC No. 830 of 2015
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules; sections 3A and 3B of the Appellate Jurisdiction Act; Article 159 of the Constitution of Kenya

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

It is now well settled that in order for an application under Rule 5(2)(b) of the Court of Appeal Rules to succeed an applicant must satisfy the twin principles of arguability and the nugatory aspect.
p. 2Test for stay of execution pending appeal under Rule 5(2)(b)
the jurisdiction of this Court under Rule 5(2)(b) of the Court Rules is an original jurisdiction, which is invoked by the filing of a notice of appeal under section 75 of the Appellate Jurisdiction Act. This jurisdiction is therefore not affected by the fact that a similar application has been dismissed by the lower court.
p. 2Original nature of Rule 5(2)(b) jurisdiction
we allow the applicant’s motion for stay of execution of the judgment issued on 22 nd November 2017 pending the hearing and determination of the intended appeal.
p. 2Disposition - stay granted
the applicant shall take all appropriate action to file his memorandum of appeal and record of appeal within 60 days from the date hereof, failing which the order of stay of execution shall lapse.
p. 2Conditional stay - 60-day filing requirement

Issues in the judgment

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minor

The coram lists the third judge as 'J. MOHAMMED, JJ.A' while the signature block reads 'J. MOHAMMED ... JUDGE OF APPEAL'; the styles are consistent, no substantive conflict.

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, "Jackton Ogula Aduogo v Francis Odhiambo Oturu (suing as the administrator of the Estate of the Late Samwel Oturu Aduogo) [2019] KECA 622 (KLR)", Case Analysis (2019). Civil Application No. 95 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/622/eng@2019-06-19

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