Nairenke & 5 others v Tina & 4 others (Civil Application E043 of 2023) [2023] KECA 1535 (KLR)
The bottom line
#The Court of Appeal froze a land judgment that cancelled the applicants' titles, keeping ownership on paper unchanged until their appeal is heard.
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 will be rendered nugatory if stay of execution of the judgment and decree is not granted
- 3.Whether the applicants have demonstrated the twin principles for grant of stay pending appeal
Key legal issues
#Arguability of the intended appeal
The intended appeal was arguable; the grounds in the memorandum of appeal were not frivolous and deserved full argument.
The court confined itself to a bird's eye view of the memorandum of appeal, per Stanley Kang'ethe Kinyanjui v Tony Keter. The applicants raised 8 grounds, including alleged misapprehension of the doctrine of res judicata and failure to apprehend the evidence. The court concluded these grounds were not frivolous and warranted the Court's attention, without evaluating their merits.
Whether the appeal would be rendered nugatory without stay
The appeal would be rendered nugatory if stay were denied, because the titles remained registered in the applicants' names and the 1st respondent could alienate or convert the land, while any loss to him was compensable by damages.
Relying on Kenya Shell Ltd v Benjamin Karuga Kibiru, the court weighed reversibility and compensability. Since titles remained registered in the applicants' names, allowing the 1st respondent to alienate or put the land to incompatible use would render any successful appeal nugatory. Conversely, if the appeal failed, the 1st respondent could still execute the judgment unhindered, and his loss from being unable to access the land could be compensated by damages.
Legal principles established
#- An applicant under rule 5(2)(b) must demonstrate an arguable appeal (not one that must necessarily succeed) and that the appeal will be rendered nugatory unless stay is granted.
- At the stay stage the court takes only a bird's eye view of the grounds of appeal; it does not consider the merits of the pending appeal.
- Before an order of stay is granted, an applicant should point to the Court the loss likely to be suffered if stay is not granted.
Court orders
#- 1.Stay of execution of the judgment and decree in Kilgoris E&LC Petition No. 1 of 2021 pending the hearing and determination of the applicants' intended appeal
- 2.Costs of the application 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, Kilgoris
- Petition No. 1 of 2021
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules, 2022
Relief refused
#Costs of the application
The court declined to award costs immediately, instead directing that they abide the outcome of the intended appeal
Costs
The costs of the application 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.
it is incumbent upon the applicants to establish that they have an arguable appeal but not one which must necessarily succeed; and, that unless the order of stay is granted the intended appeal stands the risk of being rendered nugatory.
In the end, we find that the applicants have demonstrated the twin principles for grant of stay of judgment pending appeal. Furthermore, we also find that based on the facts of this case, there would be no prejudice or injustice to be sufiered by the 1st respondent if the stay orders are issued.
Consequently, the application dated May 15, 2023 has merit and is allowed so that an order is hereby issued staying the execution of the judgment and decree in Kilgoris E&LC Petition No. 1 of 2021 pending the hearing and determination of the applicants' intended appeal. The costs of the application shall abide the outcome of the intended appeal.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nairenke & 5 others v Tina & 4 others (Civil Application E043 of 2023) [2023] KECA 1535 (KLR)", Case Analysis (2023). Not stated in the judgment text. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/1535/eng@2023-12-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.