Grace Wanjiru Githaiga & 1 other v Johnson Githii Karanja
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the intended appeal was arguable
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.
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.
Whether it was necessary to determine the nugatory limb
Having failed on arguability, the court found it unnecessary to consider whether the appeal would be rendered nugatory.
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.
Legal principles established
#- 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
#- 1.The notice of motion dated 6th March 2023 seeking stay of execution pending appeal is dismissed
- 2.The applicants to pay the respondent's costs of the application
- 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
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- LN v JEN (Civil Application E613 of 2024) [2025] KECA 1130 (KLR)[2025] KECA 1130 (KLR)20 Jun 2025
Cite this brief
#Cite this brief
Caselaw, "Grace Wanjiru Githaiga & 1 other v Johnson Githii Karanja", 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.