Njeri & 2 others v Mbutti & another (Civil Application E089 of 2022) [2023] KECA 225 (KLR)
The bottom line
#The Court of Appeal stopped the eviction of three long-time occupants from Nairobi land until their appeal is heard, because the lower court never determined how far they had encroached.
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, if successful, would be rendered nugatory absent stay
Key legal issues
#Whether the applicants met the twin test under rule 5(2)(b) for an injunction/stay pending appeal
The court found both limbs satisfied: the appeal was arguable on the ground that the eviction order was made without determining the extent of encroachment, and eviction from land would render the appeal nugatory.
Applying the principles in Stanley Kangethe Kinyanjui v Tony Keter & Others, the court held that a single bona fide arguable ground suffices. The applicants raised the ground that the ELC judgment ordered eviction without addressing the boundary dispute or extent of encroachment. On the second limb, the applicants risked eviction from land they claimed to have occupied for over 40 years, an irreversible outcome; the court did not make definitive findings on the facts.
Legal principles established
#- An applicant under rule 5(2)(b) must satisfy the twin principles of an arguable appeal and nugatory effect, and a single bona fide arguable ground suffices.
- In a rule 5(2)(b) application the court must not make definitive or final findings of fact or law.
- 'Nugatory' is not confined to worthlessness; it includes trifling effect, and reversibility or compensability in damages is considered.
Court orders
#- 1.The 2nd and 3rd prayers in the notice of motion dated March 9, 2022 granted as sought (injunction restraining the respondents from evicting the applicants from Dagoretti/Riruta/5433 pending appeal)
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Environment and Land Court
- not stated
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules (original and discretionary jurisdiction to grant stay of execution/injunction pending appeal)
Relief refused
#No other relief identified; the court granted only the 2nd and 3rd prayers, implying the 1st prayer was not granted
The court confined its orders to the 2nd and 3rd prayers in the motion
Costs
No order as to costs was made in the judgment.
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.
We are satisfied that the applicants have demonstrated that they have an arguable appeal. On the nugatory aspect, the applicants are facing the risk of eviction from a parcel of land. We think that the 2nd limb for our consideration has also been satisfied.
The upshot of the above is that we grant the 2nd and 3rd prayers as sought in the motion of March 9, 2022. It is so ordered.
An applicant must satisfy the court on both the twin principles.
Issues in the judgment
#The suit property is referred to as 'Dagoretti/Riruta/5443' at the start of the judgment but the final orders do not restate the parcel number; also the motion date in paragraph 1 ('March 9, 2022') is stated twice consistently, so no contradiction there.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Njeri & 2 others v Mbutti & another (Civil Application E089 of 2022) [2023] KECA 225 (KLR)", Case Analysis (2023). Notice of motion dated March 9, 2022 (rule 5(2)(b) application) - not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/225/eng@2023-03-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.