Taveta Teachers Investment Limited (Suing on their own behalf and on behalf of the 430 Squatters/Residents of Junda Kasarani Ndogo Self Help Group Residing upon Property Title No. 771/li/Mn) v Mbaro Johnson & 9 others (Civil Application 68 of 2020) [2021] KECA 1075 (KLR)
The bottom line
#The Court of Appeal refused to pause an adverse possession judgment, confirming a stay application must match your notice of appeal and clear two strict tests.
What this practically means
#Executive summary
#Key legal issues
#Whether the Court could grant stay in respect of the judgment of Matheka, J. of 29th March 2019
No. The notice of appeal relates only to the ruling of Yano, J., so the Court could not stay the Matheka, J. judgment which is not the subject of the intended appeal
The Court restated the Rule 5(2)(b) framework from Stanley Kangethe Kinyanjui v Tony Ketter, starting with the requirement that a notice of appeal under Rule 75 must be filed and must relate to the decision sought to be stayed. Because the notice of appeal before the Court was in respect only of Yano, J.'s decision of 29th July 2019, the prayers framed to also stay Matheka, J.'s ex parte judgment were untenable.
Whether the intended appeal against the res judicata ruling of Yano, J. was arguable
No arguable point arises ex facie from the ruling, which concerned the exercise of judicial discretion in dismissing the application as res judicata and an abuse of process
The Court characterised Yano, J.'s ruling as a discretionary decision dismissing the applicant's application on res judicata grounds, since a court of co-ordinate jurisdiction had already determined a similar application. While declining to express any firm position on that decision, the Court found on the face of it that no arguable point would arise on appeal, failing the first limb of the Rule 5(2)(b) test.
Whether the intended appeal would be rendered nugatory if stay was not granted
No. The ruling was a dismissal with no enforceable component, so nothing in it could be rendered nugatory
Applying the second limb of the Rule 5(2)(b) test, the Court examined what the ruling of Yano, J. actually did. Having found it was a pure dismissal of the application, with costs, the Court held there was nothing capable of enforcement that could be rendered nugatory in the absence of a stay, so the applicant failed the second limb as well.
Legal principles established
#- An application for stay under Rule 5(2)(b) can only relate to the decision that is the subject of the notice of appeal; the Court will not stay a decision not being challenged in the intended appeal
- An applicant under Rule 5(2)(b) must satisfy both limbs - that the intended appeal is arguable and that it will be rendered nugatory if stay is not granted
- In determining a Rule 5(2)(b) application the Court makes no definitive or final findings on fact or law, to avoid embarrassing the hearing of the main appeal
- A dismissal is incapable of enforcement and therefore cannot be rendered nugatory
Court orders
#- 1.The application under Rule 5(2)(b) for stay of execution pending appeal is dismissed
- 2.Costs of the application awarded to the respondents
- On appeal from
- Environment and Land Court, Mombasa
- ELC Case No. 318 of 2015
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Taveta Teachers Investment Limited (Suing on their own behalf and on behalf of the 430 Squatters/Residents of Junda Kasarani Ndogo Self Help Group Residing upon Property Title No. 771/li/Mn) v Mbaro Johnson & 9 others (Civil Application 68 of 2020) [2021] KECA 1075 (KLR)", Case Analysis (2021). Civil Application No. 68 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/1075/eng@2021-01-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.