Charles Karanja Mashua v Jonah Mzee Orumoi & 8 others [2021] KECA 684 (KLR)
The bottom line
#Kenya's Court of Appeal paused land court proceedings pending appeal, confirming one arguable ground is enough for 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, absent the orders sought, the appeal would be rendered nugatory
- 3.Whether a temporary injunction should issue against the 1st to 4th respondents
- 4.Whether further proceedings in the ELC should be stayed pending the appeal
Key legal issues
#Whether the intended appeal was arguable under Rule 5(2)(b)
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.
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.
Whether the appeal would be rendered nugatory if stay of proceedings was not granted
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.
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.
Whether a temporary injunction should issue against the 1st to 4th respondents
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.
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.
Legal principles established
#- 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
#- 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
#One judgment of the whole court — no separate or dissenting opinions.
- 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
#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
Costs
No costs order is stated in the ruling; the costs of the application were not addressed.
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.
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.
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.
By itself that single ground is sufficient for us to find that the appeal is arguable.
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.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.