Joshua Ngatu v Jane Mpinda & 3 others [2021] KECA 801 (KLR)
The bottom line
#Kenya's Court of Appeal refused to stop enforcement of a land ruling because the applicant showed no arguable appeal and there was nothing left to 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 intended appeal will be rendered nugatory if stay is not granted
Key legal issues
#Whether the applicant satisfied the twin limbs of the Rule 5(2)(b) threshold for stay of execution pending appeal
Both limbs failed. No draft Memorandum of Appeal or grounds were provided to demonstrate arguability, and the applicant did not controvert the respondents' contentions that the decree had been executed and that the order was negative in nature, leaving nothing to stay.
The Court took the guiding principles from Stanley Kengethe Kinyanjui v Tonny Ketter & 5 Others: the applicant must show an arguable appeal and that the appeal would be rendered nugatory without stay. The applicant annexed no draft Memorandum of Appeal and identified no discernible grounds. On the nugatory limb, the respondents' uncontroverted averments showed no threat of dispossession of the substratum, the decree had been executed, and the impugned order was negative and incapable of being stayed.
Legal principles established
#- An applicant under Rule 5(2)(b) must first demonstrate an arguable appeal, which need not ultimately succeed but must warrant interrogation by the Court, and second that the appeal will be rendered nugatory if stay is not granted.
- A negative order cannot be stayed; there must be something capable of execution to attract relief under Rule 5(2)(b).
Court orders
#- 1.The Notice of Motion dated 10th December, 2019 seeking stay of execution of the Ruling of Mbugua, J dated 13th November, 2019 is dismissed
- 2.Costs of the application awarded to the Respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Meru (Environment and Land Court)
- Meru ELC Case No. 15 of 2018
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules, 2010
Relief refused
#Stay of execution of the Ruling of the High Court dated 13th November, 2019
The applicant failed to satisfy both limbs of the Rule 5(2)(b) test - the appeal was not shown to be arguable, and the order sought to be stayed is a negative order that was already executed
Costs
Application dismissed with costs to the Respondents
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.
These require the Applicant to satisfy the Court, firstly, that, he has an arguable appeal which in law need not ultimately succeed but one that would not only invite a response from the opposite party but would also warrant a merit interrogation by this Court. Second, also to demonstrate that the intended appeal will be rendered nugatory if the relief sought is not granted.
Thirdly, the order sought to be stayed is a negative order. It does not therefore attract the nature of the relief Applicant seeks before us.
The upshot of the above assessment and reasoning is that we find no merit in the application. It is accordingly dismissed with costs to Respondents.
Issues in the judgment
#The judgment inconsistently dates the ELC case, referring to it as both No. 15 of 2015 and No. 15 of 2018
The coram states the court sat at Nyeri but the delivery clause states the ruling was delivered at Nairobi
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Joshua Ngatu v Jane Mpinda & 3 others [2021] KECA 801 (KLR)", Case Analysis (2021). Civil Application No. 183 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/801/eng@2021-03-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.