Waiganjo v Kimani & another (Civil Application E411 of 2023) [2023] KECA 1567 (KLR)
The bottom line
#Kenya's Court of Appeal refused to pause a land case heading to judgment, ruling the applicant can still appeal whatever the trial judge decides.
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 orders sought to be stayed are negative in nature and therefore incapable of being stayed
- 2.Whether the applicant has an arguable appeal
- 3.Whether the intended appeal will be rendered nugatory absent a stay of proceedings
Key legal issues
#Whether an order partly negative in character is incapable of being stayed
The court rejected the submission that the order was entirely negative; because it contained directions for filing and exchange of submissions, it was capable of being stayed at least in part.
The court perused the trial court's order and found that, beyond dismissing the adjournment application, the judge made positive directions requiring the parties to file and exchange written submissions. A direction requiring compliance by parties is a positive act capable of being stayed. The 2nd respondent's argument that the order, at least in part, was not capable of being stayed was therefore rejected.
Whether the grounds of the intended appeal are arguable
The grounds questioning the judge's denial of the adjournment and the alleged denial of the right to a fair hearing under article 50 of the Constitution were arguable, though their ultimate success was left to the appeal bench.
The court examined the memorandum of appeal and identified two questions as arguable: whether the judge exercised his discretion properly in denying the adjournment, and whether the applicant was denied a fair hearing under article 50. The court stressed that an arguable ground need not necessarily succeed and declined to prejudge the appeal.
Whether the intended appeal would be rendered nugatory absent a stay of proceedings
The appeal would not be rendered nugatory because judgment was pending and either party would retain a right of appeal against it.
It was common ground that the hearing had concluded and judgment was set for 27th October 2023. The court reasoned that if the applicant succeeded at trial the appeal would be unnecessary, and if he lost he could challenge the judgment even on the same grounds raised in the application. The nugatory limb of the test therefore failed and the application could not succeed.
Legal principles established
#- A trial court order that combines a dismissal of an adjournment application with positive directions (such as filing and exchange of submissions) is not a purely negative order and is capable of being stayed to the extent of its positive directions.
- For stay of orders to issue, the applicant must demonstrate that the appeal or intended appeal would, in the absence of stay, be rendered nugatory.
- An arguable ground of appeal need not be one that must necessarily succeed at the hearing of the appeal.
- Where the trial court's judgment is pending and the losing party will in any event have a right of appeal, a stay of proceedings will not be granted merely because the intended appeal may become academic.
Court orders
#- 1.Dismissal of the Notice of Motion dated 21st August 2023
- 2.Costs of the application to the 2nd respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Environment and Land Court, Nairobi
- ELC Case No. 195 of 2017
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules (stay of proceedings pending appeal)
Relief refused
#Stay of the orders of Mboya, J. made on 27th July 2023 in Nairobi ELC Case No. 195 of 2017 pending the hearing and determination of the intended appeal
The intended appeal was held to be arguable but not nugatory, as whichever way the judgment goes either party has a right of appeal
Costs
Application dismissed with costs to the 2nd respondent
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.
To that extent, the order may have been negative in certain aspects but it contained certain directions that the parties had to comply with. In the premises, we reject the argument by the 2nd respondent that the order, at least part of its, is not capable of being stayed.
... for stay of orders to issues, the Applicant must demonstrate that the appeal or intended appeal would, in the absence of stay, be rendered nugatory.
As this court has said in several decisions, held, an arguable ground is not one that must necessarily succeed at the hearing.
In view of the foregoing, we find that this application has no merit and we dismiss it with costs to the 2nd respondent.
Issues in the judgment
#Internal contradiction: paragraph 10 rejects the argument that the order is negative and incapable of being stayed, but paragraph 11 opens by stating the order was held to be 'entirely negative'.
Coram block in the certified copy lists 'M. GACHOKA CIArb, FCIArb' with professional designations rather than the rank 'Judge of Appeal' on the signature line; the rank is nonetheless stated on the certification line.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Waiganjo v Kimani & another (Civil Application E411 of 2023) [2023] KECA 1567 (KLR)", Case Analysis (2023). Not stated in the judgment (Notice of Motion dated 21st August 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/1567/eng@2023-12-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.