Juma (Administrator of the Estate of the Late Jacob Juma) v Shah & 3 others (Civil Appeal (Application) E306 of 2023) [2024] KECA 887 (KLR)
The bottom line
#The Court of Appeal refused to pause execution of a Kshs. 50 million land judgment because the applicant waited too long and still holds possession of the property.
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 intended appeal is arguable
- 2.Whether the appeal will be rendered nugatory if stay of execution and injunction are not granted
Key legal issues
#Whether the intended appeal is arguable
Yes - the memorandum of appeal raises several grounds deserving ventilation, so the first limb of the twin test is satisfied
The Court applied its settled jurisprudence that an applicant need not demonstrate a multiplicity of arguable points, nor that the points would ultimately succeed. From the memorandum of appeal, several grounds raised on the validity and priority of the competing grants were found to deserve ventilation at the hearing of the appeal.
Whether the appeal will be rendered nugatory if stay is not granted
No - the applicant failed the second limb; she remains in possession, delayed 19 months in bringing the application, and status quo orders exist in a parallel ELC suit
The applicant had been in possession of the suit property for 15 years notwithstanding the judgment; she did not oppose an eviction application, and status quo orders of 22nd April 2024 in ELC No. E070 of 2023 protect the position. Her lacklustre approach and inordinate delay weighed against her, and the Court was unpersuaded the appeal would be rendered nugatory.
Legal principles established
#- To succeed under Rule 5(2)(b), an applicant must satisfy the twin principles of an arguable appeal and that the appeal will be rendered nugatory absent a stay
- An arguable appeal need not show a multiplicity of arguable points; one arguable point suffices, and it need not be a point that would succeed in the end
Court orders
#- 1.The application is dismissed
- 2.Costs of the application to the 1st and 2nd respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Environment and Land Court
- Jurisdiction invoked
- Rules 1(2) and 5(2)(b) of the Court of Appeal Rules (2022)
Relief refused
#Stay of execution of the judgment delivered on 28th July 2022
Applicant failed to demonstrate the appeal would be rendered nugatory; she has remained in possession for 15 years and status quo orders exist in ELC No. E070 of 2023
Injunction restraining the 1st-4th respondents from alienating or encumbering LR No. 18485 or altering its records
The second limb of the Rule 5(2)(b) twin test was not satisfied
Costs
The application is dismissed with costs to the 1st and 2nd respondents
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.
To succeed in an application under Rule 5 (2)(b) of the Court of Appeal Rules, an applicant has to satisfy the twin principles that are enumerated in several of our decisions.
an applicant need not show a multiplicity of arguable points, as one arguable point would sufice. Neither is the applicant required to show that the arguable point would succeed in the end
From the above analysis the applicant has failed to demonstrate the second of the twin principles. As such, the application is dismissed with costs to the 1st and 2nd respondent.
Issues in the judgment
#The applicant's own affidavit describes her as 'appellant' although the appeal is stated to be intended, not yet heard; the judgment refers to both 'applicant' and 'appellant' interchangeably
The replying affidavit deposes both that eviction orders were applied for unopposed and that the eviction application was dismissed, while the respondents' submissions state eviction orders were denied on 22nd April 2024
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Juma (Administrator of the Estate of the Late Jacob Juma) v Shah & 3 others (Civil Appeal (Application) E306 of 2023) [2024] KECA 887 (KLR)", Case Analysis (2024). Notice of motion dated 25th March 2024 (Court of Appeal, Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/887/eng@2024-07-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.