Jane Njeri Karongo & Harrison Munga Karongo (Sued as the Legal Representatives of the Estate of Rongo Kiuri) & another v Karongo) (Civil Appeal (Application) E055 of 2022) [2024] KECA 416 (KLR)
The bottom line
#Kenya's Court of Appeal refused to stop execution of a land ruling, punishing the applicants for disobeying court orders and hiding earlier applications.
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 applicants had established the twin principles under rule 5(2)(b), namely an arguable appeal and that the appeal would be rendered nugatory absent stay
- 2.Whether the application was an abuse of court process and whether the applicants came to court with unclean hands
- 3.Whether a party may pursue review and appeal over the same orders concurrently
Key legal issues
#Whether the application satisfied the twin principles for stay under rule 5(2)(b)
The court held the intended appeal was frivolous and not arguable, and that even if the twin principles were reached, the applicants would fail.
The court reiterated the settled rule 5(2)(b) threshold: arguability and nugatory-ness. It found the applicants' conduct - repeated failed applications, disobedience of the conditional stay order, and non-disclosure of a prior dismissed stay application in the same court - disentitled them to the discretionary equitable remedy. It further found the appeal, being an attempt to re-litigate review of the same orders, was frivolous and not arguable.
Whether the application was an abuse of court process
Yes. The applicants engaged in forum shopping and multiplicity of proceedings, contrary to the overriding objective.
The applicants had previously sought identical stay orders in this Court (dismissed 19th March 2021 for material non-disclosure), repeatedly sought review at the ELC, and had pursued review and appeal over the same orders concurrently. The court held such conduct contravenes section 3A of the Appellate Jurisdiction Act and the overriding objective, and that dismissal is the prescribed outcome for abuse of process.
Whether review and appeal may be pursued over the same orders
No. Both options cannot be pursued concurrently or one after the other.
Relying on Yani Haryanto v E.D. & F. Man (Sugar) Ltd, the court endorsed the principle that a party may elect review or appeal, but upon pursuing review to conclusion, the appellate court's jurisdiction over the same orders is extinguished and the notice of appeal becomes purposeless. The applicants' appeal, predicated on a second review attempt, was therefore untenable.
Legal principles established
#- An applicant under rule 5(2)(b) must establish that the appeal is arguable (not frivolous) and that, if stay is not granted, the appeal would be rendered nugatory.
- A party cannot pursue review and appeal over the same orders concurrently or one after the other; once review is pursued to conclusion, the appellate court has no further jurisdiction over those orders.
- Stay of execution is an equitable and discretionary remedy, and a litigant who disobeys court orders or fails to make full disclosure is undeserving of it.
- An application that constitutes forum shopping, evasion or obstruction of the course of justice is an abuse of court process and must be dismissed.
Court orders
#- 1.The applicants' application dated 4th February, 2022 was dismissed with costs to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Environment and Land Court
- ELC Case No. 25 of 2018
- Jurisdiction invoked
- Rules 5(2)(b) and 47 of the Court of Appeal Rules
Relief refused
#Stay of execution of the ruling of Okong'o J delivered on 27th January 2022 pending the hearing and determination of the application and appeal
The applicants came to court with unclean hands, having disobeyed court orders and failed to disclose material information; the application was an abuse of court process and the intended appeal was frivolous and not arguable
Costs
Application dismissed with costs to the 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.
for such an application to succeed, the applicant must establish first, that his/her appeal is arguable. However, this does not mean that it should be an appeal that should automatically succeed, but it should be one that is not frivolous.
Both options cannot be pursued concurrently or one after the other.
In light of the foregoing we are constrained to decline the exercise of our judicial discretion in favour of the applicant, and state that litigation must come to an end.
we find that the applicants’ application dated 4th February, 2022 lacks merit and is consequently dismissed with costs to the respondent.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Jane Njeri Karongo & Harrison Munga Karongo (Sued as the Legal Representatives of the Estate of Rongo Kiuri) & another v Karongo) (Civil Appeal (Application) E055 of 2022) [2024] KECA 416 (KLR)", Case Analysis (2024). Civil Application No. NAI of 2022 (as arising from ELC Case No. 25 of 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/416/eng@2024-04-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.