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Court of AppealPartially AllowedCivil Application No. E330 of 2020

Charles Karanja Mashua v Jonah Mzee Orumoi & 8 others [2021] KECA 684 (KLR)

Court of Appeal
23 April 2021
1,215 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal paused land court proceedings pending appeal, confirming one arguable ground is enough for a stay.

What this practically means

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Executive summary

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This is a single-judgment-of-the-court ruling of the Court of Appeal at Nairobi (Ouko, P., Nambuye and Asike-Makhandia, JJ.A.) on a motion under Rule 5(2)(b) of the Court's Rules seeking a temporary injunction and stay of further proceedings in the Environment and Land Court pending the hearing of an appeal against a ruling of C. Ochieng, J. dated 14th May 2020, which struck out the applicant's entire suit against the 1st to 4th respondents as time barred under Section 7 of the Limitations of Actions Act. The dispute concerns land at Loitokitok/Olkaria, where the applicant alleged that about 583 acres were unlawfully excised from his parcel via an altered mutation form dated 12th October 1990. The court found the appeal arguable on the single ground of whether the learned Judge misconstrued or misapplied the Limitations of Actions Act regarding when the limitation period began to run, holding that one arguable ground suffices. On the nugatory limb, it held that since the ruling struck out the 1st to 4th respondents, allowing the ELC proceedings to continue without them would render the appeal otiose if it succeeded. The court accordingly granted a stay of further proceedings in ELC No. 11 of 2019 pending Civil Appeal No. E021 of 2020. It refused the temporary injunction, holding that parcel 255 belonged to the 5th respondent and the 14 other listed parcels were not the subject of the suit below. The motion was therefore partially allowed. No costs order was stated.

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 is arguable
  2. 2.Whether, absent the orders sought, the appeal would be rendered nugatory
  3. 3.Whether a temporary injunction should issue against the 1st to 4th respondents
  4. 4.Whether further proceedings in the ELC should be stayed pending the appeal

Key legal issues

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01

Whether the intended appeal was arguable under Rule 5(2)(b)

Holding

The appeal was arguable on the single ground that the learned Judge may have misconstrued or misapplied the Limitations of Actions Act regarding when the limitation period began to run.

Reasoning

The court examined the memorandum of appeal without making a final determination on merits. It found that whether the judge misconstrued or misapplied the provisions of the Limitations of Actions Act on when the limitation period began to run was a question warranting the Court's consideration at the hearing of the appeal. Citing Kenya Methodist University vs. Mary Kaungania, it held that one arguable ground suffices.

p. 2
02

Whether the appeal would be rendered nugatory if stay of proceedings was not granted

Holding

The nugatory-principle limb was satisfied because the impugned ruling struck out the 1st to 4th respondents; if the ELC proceedings continued without them and the appeal later succeeded, the appeal would be otiose and judicial time wasted.

Reasoning

The court reasoned that the ruling struck out the 1st to 4th respondents from the suit. If the ELC proceedings proceeded without them and the appeal eventually succeeded, the appeal would be otiose, and the resulting proceedings would have to be set aside and the suit heard afresh, wasting judicial time. A stay of further proceedings pending the appeal obviates that waste.

p. 2
03

Whether a temporary injunction should issue against the 1st to 4th respondents

Holding

The injunction could not issue because parcel 255 belonged to the 5th respondent and the other 14 parcels were not the subject of the suit below and hence not the subject of the appeal.

Reasoning

The court agreed with the 1st to 4th respondents that the temporary injunction sought could not issue. Loitoktok/Olkaria/255 belonged to the 5th respondent, having been sold to it by the applicant, while the 14 other properties sought to be restrained were not the subject of the suit at the ELC and therefore could not be the subject of the appeal. That prayer failed.

p. 2

Legal principles established

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  • An applicant under Rule 5(2)(b) must satisfy the twin principles that the appeal is arguable and that, unless the orders sought are granted, the appeal will be rendered nugatory; the principles are the same whether the application is for stay of execution or stay of further proceedings.
  • A single arguable ground in the memorandum of appeal is sufficient to establish that an appeal is arguable under Rule 5(2)(b).
  • Where a ruling struck out some parties from a suit, proceedings should be stayed pending appeal, because if the appeal succeeds the proceedings conducted without those parties would be set aside and the suit heard afresh.
  • Property that was not the subject of the suit in the court below cannot be the subject of the appeal or of interim injunctive relief on appeal.

Court orders

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  1. 1.An order staying further proceedings in ELC No. 11 of 2019 pending the hearing and determination of Civil Appeal No. E021 of 2020

The bench

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

William Ouko
W. OukoJA
Currently serving
majority
majority
majority
On appeal from
Environment and Land Court of Kenya at Kajiado
ELC No. 11 of 2019
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules (application for stay of proceedings/injunction pending appeal)

Relief refused

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Temporary injunction restraining the 1st to 4th respondents from selling or interfering with LR. Nos. Loitokitok/Olkaria/255, 1857, 1858 and other listed parcels

Parcel 255 belongs to the 5th respondent, having been sold to it by the applicant, and the 14 other parcels were not the subject of the suit at the ELC and therefore cannot be the subject of the appeal

p. 2

Costs

No costs order is stated in the ruling; the costs of the application were not addressed.

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.

In the end, we allow the motion to the extent that we grant an order staying further proceedings in ELC No. 11 of 2019 pending the HEARING AND DETERMINATION OF CIVIL APPEAL NO. E021 OF 2020.
p. 2Final orders - stay of proceedings granted
We stress also that, though the applicant prays for both orders of stay of execution and further proceedings, the principles to be considered in dealing with the two are the same.
p. 2Rule 5(2)(b) principles - stay of execution and stay of proceedings
By itself that single ground is sufficient for us to find that the appeal is arguable.
p. 2Threshold for arguability
the 14 other properties the dealing of which are sought to be restrained were not subject of the suit at the ELC and therefore cannot be the subject of the appeal.
p. 2Scope of interim relief confined to suit property

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, "Charles Karanja Mashua v Jonah Mzee Orumoi & 8 others [2021] KECA 684 (KLR)", Case Analysis (2021). Civil Application No. E330 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/684/eng@2021-04-23

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