Kerika v Kaata (Civil Application E050 of 2020) [2021] KECA 309 (KLR)
The bottom line
#Kenya's Court of Appeal stopped a land eviction, confirming that long possession plus an arguable appeal can justify a stay of execution.
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 ELC are not stayed, the intended appeal would be rendered nugatory
Key legal issues
#Whether the intended appeal is arguable
The court found a single bona fide arguable ground existed; ownership of the suit property was not contested, and the intended appeal was arguable.
The court applied the Trust Bank and Kang'ethe Kinyanjui principles: an applicant need only demonstrate a single bona fide arguable ground, and the court must avoid definitive or final findings of fact or law so as not to embarrass the bench hearing the main appeal. Finding no contestation as to ownership, the court was satisfied the intended appeal was arguable without saying more.
Whether the intended appeal would be rendered nugatory if stay is not granted
The applicant, having been in possession of the suit property for many years and facing the risk of eviction and undue hardship, satisfied the nugatory principle.
Guided by Kang'ethe Kinyanjui, the court considered whether what is sought to be stayed is reversible or compensable in damages. On the record, the applicant had been in possession for many years and faced eviction and undue hardship; the court weighed the conflicting claims of both parties on their merits and concluded both twin principles were satisfied.
Legal principles established
#- An applicant under Rule 5(2)(b) must satisfy the twin principles: that the appeal or intended appeal is arguable, and that if stay is not granted the appeal, if successful, will be rendered nugatory.
- An arguable appeal need not be one that must succeed; it is one that is not frivolous and deserves full argument.
- In determining whether an appeal will be rendered nugatory, the court weighs the conflicting claims of both parties and each case is considered on its merits.
Court orders
#- 1.Stay of execution of the orders of the Environment & Land Court at Makueni (Mbogo, J.) of 23rd December 2020 pending the hearing and determination of the intended appeal
- 2.Costs to abide by the outcome of the intended appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Environment & Land Court at Makueni
- 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.
The jurisdiction of the Court under Rule 5(2)(b) is original and discretionary and it is trite law that to succeed an applicant has to show firstly that his appeal or intended appeal is arguable, to put another way, it is not frivolous and secondly that unless he is granted a stay the appeal or intended appeal, if successful will be rendered nugatory.
The term “nugatory” has to be given its full meaning. It does not only mean worthless, futile or invalid. It also means trifiing.
The upshot is that the application dated 16th February, 2021 is allowed. Costs shall abide by the outcome of the intended appeal.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kerika v Kaata (Civil Application E050 of 2020) [2021] KECA 309 (KLR)", Case Analysis (2021). Notice of motion dated 16th February, 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/309/eng@2021-12-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.