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Court of AppealAllowedKisumu Civil Application (as stated: arising from Bungoma ELC Petition E002 of 2021; see also KSM CA No E196 of 2023 Abdallah Wereh v the same respondents)

Makokha v County Government of Bungoma & 4 others (Civil Application E198 of 2023) [2024] KECA 211 (KLR)

Court of Appeal
29 February 2024
1,847 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal paused land case proceedings because the dispute was already decided in the estate's favour, keeping that judgment from being undone while the appeal is heard.

What this practically means

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Executive summary

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This was an interlocutory application before the Court of Appeal at Kisumu under Rule 5(2)(b) of the Court of Appeal Rules, 2010, in which the applicant, as personal representative of the Estate of Moses Makokha Sabuni, sought a stay of further proceedings in Bungoma ELC Petition E002 of 2021 pending the hearing of his appeal. The appeal challenges the ruling of Cherono, J delivered on 12th May 2023, which set aside the ex-parte judgment of Olao, J of 21st February 2022 that had vested a portion of land (on which Lutaso Market and Kimilili Ward Administration Office stand) in the Estate and granted possession and mesne profits, and which allowed the 1st respondent time to file a response. The applicant contended that the setting aside amounted to a judge sitting on appeal over a decision of a judge of equal status. The Court applied the settled twin principles for Rule 5(2)(b) relief: the appeal must be arguable and, if successful, rendered nugatory absent stay. It found the single ground - inordinate delay by the 1st respondent in seeking to set aside the ex-parte judgment - arguable. On nugatory-ness, the Court acknowledged its ordinary practice of not staying proceedings in the High Court or courts of equal status pending interlocutory appeals, but held that the narrow circumstances here - a concluded judgment in the applicant's favour - warranted a stay, since continuing proceedings would moot the appeal. The application was allowed, with costs to abide the appeal. No response was filed to the application. The judgment is a single judgment of the whole bench; the Cherono, J ruling was not itself disturbed.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Applicants have satisfied the requirements necessary for granting an order for stay of proceedings, namely that the appeal is arguable and that it will be rendered nugatory if stay is not granted

Key legal issues

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01

Whether the appeal is arguable

Holding

Yes. The question whether it was proper to set aside a judgment entered following the opposing party's failure to file written submissions is an arguable point worthy of full argument.

Reasoning

Relying on Wasike v Swala, Transouth Conveyors and KCB v Nicholas Ombija, the Court held that an arguable appeal need not succeed, nor raise a multiplicity of issues; one serious issue of law suffices. The memorandum of appeal raised the single issue of inordinate delay by the 1st respondent in seeking to set aside the ex-parte judgment, which the Court found arguable.

p. 3
02

Whether the appeal would be rendered nugatory if stay is not granted

Holding

Yes, on the narrow circumstances. The suit before the ELC had been concluded in the applicant's favour, and continuing proceedings would render nugatory the very question on appeal: whether the concluded proceedings should be re-opened.

Reasoning

While the ordinary rule is that this Court does not stay proceedings of the High Court pending interlocutory appeals, the decision is case-specific. Here, but for the impugned ruling setting aside Olao J's judgment, the matter was concluded; allowing the trial to continue would upset the decision of a court of equal jurisdiction and moot the appeal. Balancing the hardship of the parties per African Safari Club supported a stay.

p. 4

Legal principles established

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  • The twin principles for an order under Rule 5(2)(b) are that the appeal is arguable and would be rendered nugatory if stay is not granted; the same principles apply whether the relief sought is an injunction, stay of execution or stay of proceedings.
  • As a general rule, the Court of Appeal does not stay proceedings in the High Court or courts of equal status pending interlocutory appeals; a pending interlocutory appeal does not of itself entitle a party to a stay of proceedings.
  • The decision whether to grant a stay of proceedings is made on a case by case basis, and the narrow circumstances of a concluded suit may warrant a stay.
  • An arguable appeal is not one that must necessarily succeed, but one that merits consideration by the court; a single arguable issue suffices.

Court orders

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  1. 1.Stay of any further proceedings in Bungoma ELC Petition E002 of 2021 pending the hearing and determination of the appeal
  2. 2.The application is allowed
  3. 3.Costs shall abide by the appeal

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
majority
On appeal from
Environment and Land Court (Bungoma)
Bungoma ELC Petition E002 of 2021
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules, 2010

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

the applicants have satisfied the twin principles for grant of an order for stay of proceedings under rule 5(2)(b). Accordingly, the application is allowed. The costs shall abide by the appeal.
p. 4Disposition - stay of proceedings granted
Ordinarily, this Court does not stay proceedings of the High Court or equal status courts pending interlocutory appeals.
p. 4General rule against stay of proceedings
an arguable appeal is not one that would necessarily succeed but one that merits consideration by the court
p. 3Meaning of arguable appeal
In determining whether or not an appeal will be rendered nugatory, a lot depends on whether or not what is sought to be stayed if allowed to happen is reversible; or if it is not reversible whether damages will reasonably compensate the party aggrieved.
p. 3Nugatory test

Issues in the judgment

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minor

Internal date inconsistency: the ruling granting the 1st respondent's application to set aside is said to have been delivered on 12th May 2023 but is elsewhere described as an order dated 12th May 2021.

minor

Internal inconsistency on whether respondents had filed responses: paragraph 5 records that the 1st respondent had not filed responses or submissions, but the later discussion refers to a judgment entered following failure to file written submissions.

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Makokha v County Government of Bungoma & 4 others (Civil Application E198 of 2023) [2024] KECA 211 (KLR)", Case Analysis (2024). Kisumu Civil Application (as stated: arising from Bungoma ELC Petition E002 of 2021; see also KSM CA No E196 of 2023 Abdallah Wereh v the same respondents). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/211/eng@2024-02-29

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.