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Court of AppealDismissed

Githaiga & another v Karanja; Murigi (Interested Party) (Civil Application E074 of 2023) [2024] KECA 605 (KLR)

Court of Appeal
24 May 2024
1,933 words in judgment
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The bottom line

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Kenya's Court of Appeal ruled an oral land lease cannot be enforced, refusing to pause an eviction because the appeal had no real chance of success.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Nairobi on a notice of motion dated 6th March 2023 brought under Sections 3, 3A and 3B of the Appellate Jurisdiction Act and Rule 5(2)(b) of the Court of Appeal Rules. The applicants, administrators of the estate of the late James Githaiga Kuria, sought a stay of execution of a judgment of the Environment and Land Court delivered on 9th February 2023, which dismissed their claim that a lease over LR 209/18279 and 209/18280 Digo Road, Nairobi had been orally renewed, and instead gave judgment for the respondent on his counterclaim, ordering them to vacate and hand over vacant possession within 90 days and to pay mesne profits of Kshs. 3,360,000. The applicants argued they had an arguable appeal and that eviction would render it nugatory. The respondent opposed, contending no draft memorandum of appeal was attached, any loss was quantifiable in money, and the rent deposits could not constitute adequate security. Applying the twin principles from Stanley Kangethe Kinyanjui v Tony Ketter, the court held that under section 3(3) of the Law of Contract Act a claim cannot be founded on an oral lease of land; since nothing signed by the parties was exhibited, the alleged oral lease and the claim to the structures were unenforceable, leaving no arguable issue. The court found it unnecessary to consider the nugatory limb and dismissed the motion with costs on 24th May 2024.

Questions the Court framed

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

  1. 1.Whether the intended appeal is arguable
  2. 2.Whether, if granted, the orders sought would render the appeal nugatory

Key legal issues

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01

Whether the intended appeal was arguable

Holding

The appeal was not arguable because the applicants' claim, including to the structures on the land, was based on an oral lease agreement which is unenforceable under section 3(3) of the Law of Contract Act.

Reasoning

The court noted that the applicants' claim rested on an alleged oral renewal of the lease. Section 3(3) of the Law of Contract Act requires a contract for the disposition of an interest in land to be in writing, signed by all parties and witnessed. Nothing signed by the parties was exhibited, so no arguable issue arose from the alleged oral lease, and the arguability threshold was not met.

p. 4
02

Whether it was necessary to determine the nugatory limb

Holding

Having failed on arguability, the court found it unnecessary to consider whether the appeal would be rendered nugatory.

Reasoning

Rule 5(2)(b) requires an applicant to satisfy both twin principles. Since the applicants failed on the first limb (arguability), the court declined to make definitive findings on the nugatory limb, consistent with the principle that such findings may embarrass the hearing of the main appeal.

p. 4

Legal principles established

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  • A party cannot found a claim on an oral lease of real property, as section 3(3) of the Law of Contract Act mandates that contracts for the disposition of an interest in land be in writing, signed by all parties and attested by a witness.
  • An applicant under Rule 5(2)(b) must satisfy both limbs of the twin principles: arguability of the appeal and whether it would be rendered nugatory.

Court orders

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  1. 1.The notice of motion dated 6th March 2023 seeking stay of execution pending appeal is dismissed
  2. 2.The applicants to pay the respondent's costs of the application

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 at Nairobi
Jurisdiction invoked
Sections 3, 3A & 3B of the Appellate Jurisdiction Act and Rule 5(2)(b) of the Court of Appeal Rules

Relief refused

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Stay of execution of the judgment and decree of the ELC delivered on 9th February 2023 pending determination of the intended appeal

The applicants failed to satisfy the arguability limb of the Rule 5(2)(b) twin principles, as their claim was founded on an oral lease of land which is unenforceable under section 3(3) of the Law of Contract Act

p. 4

Costs

It is accordingly dismissed with costs. Orders accordingly.

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.

Therefore, a party cannot found a claim on an oral lease of real property in view of the mandatory provisions of section 3(3) of the Law of Contract Act.
p. 4Enforceability of oral leases
In our view there is no arguable issue in regard to the oral lease agreement because the same is not enforceable.
p. 4Arguability of appeal
The upshot of the above is that this application must fail. It is accordingly dismissed with costs.
p. 4Disposition

Issues in the judgment

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minor

The lease terms are inconsistently stated: the applicants describe a lease dated 30th June 2015 expiring on 30th August 2021 (renewed to 30th October 2025), while the respondent describes a 5-year term from 1st July 2015 to 30th September 2020; also the respondent is referred to in the singular in places and elsewhere plural ('restraining the respondents').

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Githaiga & another v Karanja; Murigi (Interested Party) (Civil Application E074 of 2023) [2024] KECA 605 (KLR)", Case Analysis (2024). . Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/605/eng@2024-05-24

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