Machage v Kiruri (Legal representative of the Estate of Eunice Wariara Ngigi (Deceased) (Civil Appeal (Application) E092 of 2022) [2023] KECA 1114 (KLR)
The bottom line
#Kenya's Court of Appeal halted eviction from occupied land, confirming that a single arguable appeal ground and proven hardship justify staying execution.
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 would be rendered nugatory in the absence of an order of stay of execution
Key legal issues
#Whether the intended appeal is arguable
The intended appeal is arguable; the contention that a sale agreement was held unenforceable for want of the respondent's signature, and that the trial court granted eviction relief not pleaded, are not frivolous
The court examined the draft memorandum of appeal and identified issues it considered worthy of full consideration: whether a sale agreement is unenforceable for lack of a co-owner's signature where the co-owner had knowledge of and benefitted from the sale, and whether a court can order eviction where no such prayer was made in the pleadings. It held these contestations can only be resolved at a full hearing and are deserving of the court's consideration.
Whether the appeal would be rendered nugatory if stay is not granted
Yes; the applicant faces eviction from land he has occupied for over 10 years and cannot obtain alternative land at the same price, constituting hardship out of proportion to the respondent's wait
The respondent did not dispute the applicant's possession, the letter of intention to execute, or the cutting down of the fence and trees. The court found the applicant's fear of eviction legitimate, noting he had occupied the land for over a decade and could not secure alternative land at the price offered as compensation. It applied the Reliance Bank principle on proportionate hardship.
Legal principles established
#- The jurisdiction under rule 5(2)(b) is original, independent and discretionary but must be exercised judiciously and with reason
- An arguable appeal need not be one that must succeed; a single arguable, non-frivolous ground suffices
- An applicant for stay under rule 5(2)(b) must demonstrate both an arguable appeal and that the appeal would be rendered nugatory absent stay
Court orders
#- 1.Stay of execution of the judgment of the Environment and Land Court (D. O. Ohungo, J.) dated May 25, 2022 pending the hearing and determination of the intended appeal
- 2.Costs to abide the outcome of the intended appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Environment and Land Court
- Nakuru ELC No 308 of 2018 is a related suit; the trial suit number is not stated in the judgment
- Jurisdiction invoked
- Rules 5(2)(b) and 44(1) of the Court of Appeal Rules, 2022 and sections 3(1) & (2), 3A and 3B of the Appellate Jurisdiction Act
Relief refused
#Deeming the Notice of Appeal filed on June 6, 2022 as withdrawn for non-compliance with rules 84 and 85 of the Court of Appeal Rules
The court declined because no application seeking that relief was before it
Costs
Costs shall abide the outcome of the intended appeal
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.
Rule 5(2)(b) is a procedural innovation designed to enable the court to preserve the subject matter of an appeal where one has been filed or an intended appeal where the notice of appeal has been filed.
An arguable appeal is not one that must necessarily succeed, it is simply one that is deserving of the court’s consideration.
To refuse to grant an order of stay to the applicant would cause to it such hardships as would be out of proportion to any sufiering the respondent might undergo while waiting for the applicants appeal to be heard and determined.
Accordingly, the application dated November 28, 2022 is hereby allowed. Costs shall abide the outcome of the intended appeal.
Issues in the judgment
#The judgment refers to the same authority with two different spellings of the counsel's name: 'Dennis Mogambi Mong’are' and 'Dennis Mogambi Mang’are'
The case number of the appeal before the Court of Appeal is not stated in the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Machage v Kiruri (Legal representative of the Estate of Eunice Wariara Ngigi (Deceased) (Civil Appeal (Application) E092 of 2022) [2023] KECA 1114 (KLR)", Case Analysis (2023). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/1114/eng@2023-09-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.