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Court of AppealDismissedNot stated in the judgment

Mwangi v The Hon Attorney General Of The Republic Of Kenya & 2 others (Civil Application E057 of 2024) [2024] KECA 1305 (KLR)

Court of Appeal of Kenya
20 September 2024
1,806 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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The Court of Appeal refused to pause a land judgment because the applicant couldn't prove his losses couldn't be repaid with money later.

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 (Warsame, Lesiit and Korir, JJA) dated 20th September 2024 on a Notice of Motion dated 22nd May 2024 brought under Rule 5(2)(b) of the Court of Appeal Rules seeking stay of execution of a judgment of the Environment and Land Court (Omollo, J.) delivered on 8th February 2024, which dismissed the applicant's counterclaim and upheld the respondent's title to Nakuru/Piave Settlement Scheme/1057 as executrix of the estate of her late husband, an SFT allottee. The applicant, who claimed to be the first allottee holding a Land Certificate issued on 16th July 1987, argued the appeal was arguable and that he faced substantial loss because the respondent had obtained a rectified grant and was allegedly about to sell the land to the Catholic Church. The respondent countered that the judgment was a negative order incapable of being stayed, that the applicant had never occupied the suit property, and that he had not come with clean hands, facing criminal charges for forgery relating to the property. Applying the twin Rule 5(2)(b) principles, the court found the appeal arguable on the question of first allotment but held the nugatory limb failed: the applicant was not in actual occupation per the trial court's site visit, any loss to crops, cattle or buildings was quantifiable and compensable in costs, and no evidence supported the alleged imminent sale. The application was dismissed with costs to the respondent.

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 the intended appeal would 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 intended appeal was arguable on the question whether the deceased was the legitimate owner given the applicant's claim to be the first allottee.

Reasoning

The court cautioned itself against making final determinations on issues for the intended appeal but found that whether the deceased was the legitimate owner of the suit property, in view of the applicant's assertion that he was the first allottee, was a legitimate arguable point deserving consideration by the Court in the intended appeal. The first limb of the Rule 5(2)(b) test was thus satisfied.

p. 4
02

Whether the appeal would be rendered nugatory if stay is not granted

Holding

The nugatory principle was not satisfied; the alleged loss was compensable and the claim of an imminent sale was unsupported by evidence.

Reasoning

The court noted the trial court's site visit found the respondent, not the applicant, in actual occupation. Any crops, cattle or buildings of the applicant could be quantified and compensated by costs. Further, no evidence supported the applicant's assertion that the respondent was selling the land to the Catholic Church. The second limb of the test therefore failed and the application collapsed.

p. 4

Legal principles established

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  • An applicant under Rule 5(2)(b) must satisfy the twin principles of arguability and nugatory-ness to obtain stay of execution pending appeal.
  • A single arguable ground suffices on arguability; the applicant need not show the appeal will definitely or probably succeed.
  • Alleged loss that is quantifiable and compensable by way of costs does not establish that an appeal will be rendered nugatory.

Court orders

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  1. 1.Application for stay of execution pending appeal dismissed with costs to the respondent

The bench

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One judgment of the whole court — no separate or dissenting opinions.

Mohamed Abdulahi Warsame
M. WarsameJA
Currently serving
majority
majority
majority
On appeal from
Environment and Land Court
Nakuru ELC Suit No. 185 of 2016
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules

Relief refused

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Stay of execution of the ELC judgment and decree dated 8th February 2024 pending appeal

Applicant failed to demonstrate the twin principles of an arguable appeal and that the appeal would be rendered nugatory; alleged loss was quantifiable in costs and no evidence of a pending sale was adduced

p. 4

Costs

The application is dismissed with costs to the respondent.

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.

In determining an application under Rule 5(2)(b) we have to satisfy ourselves that the applicant has demonstrated the twin principles that they have an arguable appeal or an appeal that is not frivolous, and secondly, that if the orders sought are not granted, the intended appeal will be rendered nugatory, if it eventually succeeds.
p. 4Twin principles for stay pending appeal under Rule 5(2)(b)
Nor are they required to show that the appeal would definitely succeed or that the appeal has very high chances of succeeding. It is sufficient, if they can show that they have raised a serious question of law or a reasonable argument, deserving consideration by this Court.
p. 4Threshold for arguability
In the end, we find the applicant has failed to demonstrate the twin principles for the grant of the orders sought. Consequently, the application is dismissed with costs to the respondent.
p. 4Disposition

Issues in the judgment

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minor

The judgment does not state the appeal or application number of the motion before the court, nor a neutral citation; the case title and case number fields are therefore reconstructed from the substance of the ruling.

minor

The respondent's replying affidavit refers to the twin principles as those for 'the grant of an injunction' rather than stay of execution, an apparent misstatement in the judgment text.

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, "Mwangi v The Hon Attorney General Of The Republic Of Kenya & 2 others (Civil Application E057 of 2024) [2024] KECA 1305 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1305/eng@2024-09-20

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