Wanjiru (Suing as the administrator of the Estate of the Late Francis Mbugua Njoroge (Deceased) & another v Thagishu (Sued as the legal representative of the Estate of Dominique Thagishu Karari) (Civil Application E541 of 2023) [2024] KECA 83 (KLR)
The bottom line
#Kenya's Court of Appeal allowed land occupants to keep possession pending appeal, ruling that one arguable issue plus risk of a pointless appeal is enough.
What this practically means
#Executive summary
#Key legal issues
#Test for relief under rule 5(2)(b)
The applicant must demonstrate an arguable appeal that is not frivolous and that the appeal will be rendered nugatory if the order sought is not granted; both limbs must be satisfied.
The court restated the established twin principles governing rule 5(2)(b) applications, citing Reliance Bank Ltd (in Liquidation) v Norlake Investments Ltd. It emphasised that satisfying one principle alone is not enough. The applicant bears the burden of establishing both limbs before the Court will exercise its discretion to grant an injunction or stay pending the hearing of an intended appeal.
Threshold of arguability
A single arguable issue is sufficient; the validity of the respondent's title was held to be a matter worthy of consideration.
Applying the arguability limb, the court found that the question of the validity of the respondent's title - given that the applicants still held the original title which was never surrendered - raised serious questions deserving consideration. The court held that a single arguable issue suffices and the applicants need not establish multiple arguable grounds.
Nugatory aspect and preservation of the substratum of the dispute
Given the applicants' long occupation and development of the land and an unsuccessful attempt to enforce the decree, it is in the interest of justice that status quo be maintained pending appeal.
The respondent's replying affidavit showed an attempt to enforce the decree by eviction which was not successful. The court weighed the applicants' investment in and development of the property over many decades and concluded that preserving the substratum of the dispute and the interest of justice required maintenance of the status quo pending the hearing and determination of the appeal.
Legal principles established
#- An applicant under rule 5(2)(b) must satisfy both the arguability and nugatory-ness limbs; satisfying only one is insufficient.
- A single arguable ground suffices for rule 5(2)(b) purposes; the applicant need not establish a multiplicity of arguable grounds.
Court orders
#- 1.The notice of motion dated November 17, 2023 is allowed
- 2.The appeal to be heard on a priority basis
- 3.Costs in the cause
- On appeal from
- Environment and Land Court
- Not stated in the judgment
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Wanjiru (Suing as the administrator of the Estate of the Late Francis Mbugua Njoroge (Deceased) & another v Thagishu (Sued as the legal representative of the Estate of Dominique Thagishu Karari) (Civil Application E541 of 2023) [2024] KECA 83 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/83/eng@2024-02-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.