Barkutwo & another v District Land Adjudication and Settlement Officer Elgeyo Marakwet County & 15 others (Civil Application E014 of 2022) [2023] KECA 1104 (KLR)
The bottom line
#The Court of Appeal allowed a Kenyan land adjudication process to continue, ruling that compensation could fix any harm if the appeal later succeeded.
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 (not frivolous)
- 2.Whether, if the conservatory orders are not granted and the appeal succeeds, the appeal will be rendered nugatory
Key legal issues
#Whether the intended appeal is arguable
The applicants demonstrated an arguable appeal, particularly on whether a court may excuse non-compliance with the two-third gender rule under article 27 of the Constitution
The court applied the Kang'ethe Kinyanjui definition of an arguable appeal as one which need not necessarily succeed but ought to be argued fully. Looking at the memorandum of appeal, including the gender-rule non-compliance ground which the trial court conceded yet excused, the applicants crossed the arguability threshold.
Whether the appeal would be rendered nugatory without the conservatory orders
It would not, because the adjudication process is 99% complete and the applicants can be reasonably compensated by damages if the appeal succeeds
The court weighed the contending interests. The adjudication process was near completion and the applicants' own reliefs in the trial court included damages and a declaration, so their grievances remain compensable. The balance of convenience and public interest favoured completion of the process.
Legal principles established
#- An applicant under rule 5(2)(b) must satisfy the twin tests of an arguable appeal and that the appeal will be rendered nugatory if stay/conservatory orders are not granted
- 'Nugatory' means not only worthless, futile or invalid but also trifling; where the effect is reversible or compensable in damages, the appeal is not rendered nugatory
- A rule 5(2)(b) court must not make definitive or final findings of fact or law at that stage
Court orders
#- 1.The application dated October 18, 2022 is dismissed with costs to the respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court (Environment and Land / constitutional petition)
- Petition dated August 27, 2022
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules (application for stay/conservatory orders pending appeal)
Relief refused
#Conservatory order restraining continuation of the Emsea/Chang'ach adjudication process pending the hearing and determination of the appeal
The second limb of the rule 5(2)(b) twin test was not satisfied - the applicants can be reasonably compensated if the appeal succeeds
Costs
The application is 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.
Accordingly, this application is dismissed with costs to the respondents.
the court must be satisfied on the twin principles which are that the appeal is arguable and that if the orders sought are not granted and the appeal succeeds, the appeal will be rendered nugatory
An arguable appeal is not one which must necessarily succeed, but one which ought to be argued fully before the court; one which is not frivolous.
We have weighed the contending interests of the parties in this application and are of the view that in the event the appeal succeeds the applicants can be reasonably compensated.
Issues in the judgment
#The panel signature block prints the first judge's name as 'F. SICHALE' in the coram; the standard spelling 'Sichale' is used in this brief
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Barkutwo & another v District Land Adjudication and Settlement Officer Elgeyo Marakwet County & 15 others (Civil Application E014 of 2022) [2023] KECA 1104 (KLR)", Case Analysis (2023). Civil Application No. E024 of 2022 (motion dated October 18, 2022, Eldoret). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/1104/eng@2023-09-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.