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Court of AppealDismissedCivil Application No. E923 of 2023 (as described in the judgment; intended appeal Civil Appeal Number E923 of 2023)

Njoroge v Maina (Civil Application E491 of 2023) [2024] KECA 1216 (KLR)

Court of Appeal of Kenya
20 September 2024
2,396 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 refused to pause a land sale judgment because the property could be restored or the owner compensated, even though her appeal raised real issues.

What this practically means

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Executive summary

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This was an interlocutory application under Rule 5(2)(b) of the Court of Appeal Rules, 2022 seeking stay of execution of a judgment of the Environment and Land Court delivered on 28th September 2023 in ELC Case No. 239 of 2017. The judgment below had declared the applicant's notice rescinding a 2015 agreement for sale of L.R No. 4894/479 Garden Estate 77 illegal, issued a permanent injunction against her, ordered vacant possession, and compelled transfer of the property to the respondent. The applicant, who had been granted a 30-day stay by the trial court due to lapse on 30th October 2023, argued her intended appeal was arguable - chiefly that she was condemned unheard at trial - and that execution would render it nugatory since the property formed part of her matrimonial home. The respondent opposed, contending she came with unclean hands, made material non-disclosure, and that the matrimonial home sits on a different parcel (LR No. 4894/480), so no nugatory prejudice would arise. The court restated the twin test: arguability and nugatory-ness. It accepted that the grounds raised, including denial of natural justice, needed ventilation and could not pass for frivolous. However, applying Kenya Industrial Estate v. Matilda Tenge Machia, it held the subject matter would not be rendered nugatory absent stay, as the property could be restored if the appeal succeeded or the applicant compensated in damages. Failing to satisfy both limbs, the application was dismissed with costs on 20th September 2024, in a unanimous judgment of Kiage, Ali-Aroni and Achode, JJA.

Questions the Court framed

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

  1. 1.Whether the applicant has an arguable appeal
  2. 2.Whether the intended appeal will be rendered nugatory if stay of execution is not granted

Key legal issues

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01

Arguability of the intended appeal

Holding

The court found the appeal arguable - the grounds concerning the dismissal of the suit and the applicant being condemned unheard needed ventilation, though the court expressed no view on the merits.

Reasoning

The applicant raised several grounds in her memorandum of appeal, including that the trial judge failed to consider her case, ignored rules of natural justice by condemning her unheard, and allowed the mistake of counsel to be visited upon her. The court held that at the stay stage it does not determine the merits but only asks whether the appeal cannot pass for frivolous. It found the grounds needed further ventilation, so the first limb was satisfied.

p. 4
02

Whether the appeal would be rendered nugatory absent stay

Holding

The court held the subject matter would not be rendered nugatory absent stay because the property can be restored if the appeal succeeds, or the applicant compensated by damages; both limbs not being satisfied, the application failed.

Reasoning

Applying the nugatory principle from Kenya Industrial Estate & Another v. Matilda Tenge Machia, the court reasoned that execution transferring the suit property is reversible: if the appeal ultimately succeeds, the property can be restored to the applicant, and if restoration is not possible, she can be reasonably compensated by way of damages. Because the applicant failed to demonstrate both limbs of the twin test, the application had to fail and was dismissed with costs.

p. 4

Legal principles established

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  • To succeed on an application under Rule 5(2)(b) of the Court of Appeal Rules, an applicant must satisfy the twin principles that the appeal is arguable and that it will be rendered nugatory if execution is not stayed
  • An applicant need not show a multiplicity of arguable points; one arguable point suffices
  • Whether an appeal will be rendered nugatory depends on whether what is sought to be stayed is reversible, or if not reversible, whether damages will reasonably compensate the aggrieved party

Court orders

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  1. 1.The applicant's notice of motion dated 24th October 2023 seeking stay of execution pending appeal is dismissed
  2. 2.Costs of the application awarded to the respondent

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 (ELC)
ELC Case No. 239 of 2017
Jurisdiction invoked
Articles 48, 50(1) and (2) of the Constitution of Kenya; Sections 3A and 3B of the Appellate Jurisdiction Act; Rules 1(2) and 5(2)(b) of the Court of Appeal Rules, 2022

Relief refused

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Stay of execution of the ELC judgment delivered 28th September 2023 pending the hearing and determination of the intended appeal

The applicant failed to demonstrate both limbs of the Rule 5(2)(b) test - the appeal was arguable but the subject matter would not be rendered nugatory absent stay as the property can be restored or the applicant compensated by damages

p. 4

Costs

The application is dismissed with costs to the respondent ("It is accordingly dismissed with cost.")

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.

It is accordingly dismissed with cost.
p. 4Final orders - dismissal of the stay application
Since the applicant has failed to demonstrate both limbs the application must fail.
p. 4Failure to satisfy the twin principles
It is our view that the subject matter herein will not be rendered nugatory absent stay.
p. 4Nugatory limb not satisfied
an applicant need not show a multiplicity of arguable points, as one arguable point would sufice
p. 4Arguability standard

Issues in the judgment

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minor

The pleading paragraph inconsistently renders the suit property's parcel number as 'LR No. 494/479' and 'LR No. 494/480' in the respondent's submissions, while elsewhere it is 'LR No. 4894/479' and 'LR No. 4894/480'

minor

The case number of the application before the Court of Appeal is not expressly stated; only the intended appeal number 'Civil Appeal Number E923 of 2023' appears

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Njoroge v Maina (Civil Application E491 of 2023) [2024] KECA 1216 (KLR)", Case Analysis (2024). Civil Application No. E923 of 2023 (as described in the judgment; intended appeal Civil Appeal Number E923 of 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1216/eng@2024-09-20

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