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Court of AppealDismissedCivil Application No. 68 of 2020

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)

Court of Appeal
29 January 2021
873 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~3 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This is a ruling of the Court of Appeal at Mombasa (Ouko, P., Nambuye and Kiage, JJ.A) on a motion under Rule 5(2)(b) of the Court of Appeal Rules seeking stay of execution pending an intended appeal. The applicant sought to stay both the ruling of Yano, J. of 29th July (dismissing its application to set aside, recall respondents for cross-examination and re-open the case as res judicata and an abuse of process) and the ex parte judgment of Matheka, J. of 29th March 2019, by which the respondents had acquired title to some 47.62 acres of land by adverse possession. The Court applied the principles in Stanley Kangethe Kinyanjui v Tony Ketter. It first held that the prayers were untenable insofar as they sought to stay the Matheka, J. judgment, because the notice of appeal related only to Yano, J.'s decision. On the merits, the Court found no arguable point arose ex facie from a ruling that merely reflected an exercise of judicial discretion on res judicata, and further that a dismissal was incapable of enforcement and thus could not be rendered nugatory. The application was dismissed with costs to the respondents. The decision binds lower courts on the Rule 5(2)(b) framework: the notice of appeal must correspond to the decision sought to be stayed; both the arguability and nugatory-ness limbs must be satisfied; and the Court makes no definitive findings of fact or law at that stage.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the notice of appeal before the Court covers the decision sought to be stayed
  2. 2.Whether the intended appeal is arguable
  3. 3.Whether the intended appeal, if successful, would be rendered nugatory absent a stay

Key legal issues

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01

Whether the Court could grant stay in respect of the judgment of Matheka, J. of 29th March 2019

Holding

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

Reasoning

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.

p. 1
02

Whether the intended appeal against the res judicata ruling of Yano, J. was arguable

Holding

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

Reasoning

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.

p. 2
03

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

Holding

No. The ruling was a dismissal with no enforceable component, so nothing in it could be rendered nugatory

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 1.The application under Rule 5(2)(b) for stay of execution pending appeal is dismissed
  2. 2.Costs of the application awarded to the respondents

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, Mombasa
ELC Case No. 318 of 2015
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules

Relief refused

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Stay of execution of the ruling of Yano, J. of 29th July 2019 and of the ex parte judgment of Matheka, J. of 29th March 2019 pending the intended appeal

The applicant failed both limbs of the Rule 5(2)(b) test: the intended appeal raises no arguable point, and the impugned ruling being a dismissal is incapable of enforcement so cannot be rendered nugatory

p. 2

Costs

Application dismissed with costs to the respondents (plaintiffs)

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.

The applicant must also satisfy the Court that the intended appeal is not only arguable but also, if successful, will be rendered nugatory if an order of stay is not granted. Both limbs too must be satisfied.
p. 2Dual-limb test for stay under Rule 5(2)(b)
A consideration of an application under Rule 5 (2) (b) does not require the Court to make any definitive or final findings on matters of either fact or law as doing so may embarrass the ultimate hearing of the main appeal.
p. 2Limited scope of Rule 5(2)(b) inquiry
For these reasons, we reject this application by dismissing it with costs, the applicant having failed on the two limbs.
p. 2Final orders - dismissal of the application with costs

Issues in the judgment

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minor

The heading records the ruling of Yano, J. as delivered on 29th July, 2019, but the body states the ruling was of 29th July, 2020, and also inconsistently dates Matheka, J.'s judgment (29th March, 2019) relative to the applicant's application of 7th December, 2018 - the internal dates conflict

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, "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.