Joseph Mwangi Kamau (administrator of the Estate of Wilson Kamau Itume (Deceased) v Jacob Ngigi Kanini & 3 others [2019] KECA 897 (KLR)
The bottom line
#The Court of Appeal halted the cancellation of a Thika plot title, ruling the appeal over two rival titles was arguable and could be ruined without a stay.
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, if successful, would be rendered nugatory in the absence of a stay of execution
Key legal issues
#Whether the intended appeal is arguable
The applicant had an arguable appeal, including the ground that there are two rival titles to the suit property whose validity is in contention
The court refrained from venturing into the merits of the intended appeal, which are for the bench hearing the main appeal. It reiterated that an arguable appeal need not necessarily succeed; it need only be deserving of the court's consideration, and one arguable ground suffices. The existence of two rival titles in the draft memorandum of appeal satisfied this low threshold.
Whether the appeal would be rendered nugatory if stay is not granted
The applicant demonstrated substantial loss, being apprehensive of eviction with the decree already extracted, and that damages would not be an adequate remedy
Applying Reliance Bank v Norlake Investments and Mukuma v Abuoga, the court considered the conflicting claims of both sides within the circumstances of the case. The applicant's apprehension of eviction, the extracted decree, and the inadequacy of damages demonstrated substantial loss that a stay must prevent by preserving the status quo.
Legal principles established
#- In dealing with a Rule 5(2)(b) application, the Court of Appeal exercises original and discretionary jurisdiction, which does not constitute an appeal from the judge's discretion
- A single arguable ground of appeal suffices to meet the arguability threshold under Rule 5(2)(b)
- Substantial loss is the cornerstone of the nugatory-prong enquiry; it is what must be prevented by preserving the status quo
- Whether an appeal would be rendered nugatory depends on the circumstances of each particular case, considering the conflicting claims of both sides
Court orders
#- 1.A stay of execution of the judgment and Orders of 7th May, 2018 is granted and the cancellation of the title deed in respect of LR No. Thika Municipality/Block 24/1299 is stayed pending the hearing and determination of the intended appeal
- 2.The 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.
- On appeal from
- Environment and Land Court of Kenya at Nairobi
- ELC No. 72 of 2012
- 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.
Accordingly, we allow the application dated 26th June, 2018
A stay of execution of the judgment and Orders of 7th May, 2018 is granted and the cancellation of the title deed in respect of LR No. Thika Municipality/Block 24/1299 is stayed pending the hearing and determination of the intended appeal.
The costs of this application to abide by the outcome of the appeal.
an arguable ground of appeal is not one which must succeed but it should be one which is not frivolous; a single arguable ground of appeal would suffice to meet the threshold that an intended appeal is arguable.
Substantial loss is what has to be prevented by preserving the status quo because such loss would render it nugatory.
Issues in the judgment
#The 1st respondent's replying affidavit is variously dated 8th October 2018 and 5th October 2018 in the judgment
The notice of motion is described as both dated 26th June 2018 and as grounded in an affidavit in support of certificate of urgency deponed by counsel for the applicant, an apparent drafting irregularity
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Joseph Mwangi Kamau (administrator of the Estate of Wilson Kamau Itume (Deceased) v Jacob Ngigi Kanini & 3 others [2019] KECA 897 (KLR)", Case Analysis (2019). Civil Application No. 184 of 2018 (UR. 150/2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/897/eng@2019-03-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.