Mohamed Omar Ahmed & 6 others v Dubey Mohamed Godad
The bottom line
#Kenya's Court of Appeal stopped the eviction of seven farmers pending appeal, ruling that asking for 'certified copies' of court proceedings still protects a late appeal.
What this practically means
#Executive summary
#Key legal issues
#Whether a request for 'certified copies of proceedings' falls within the proviso to rule 84(1) of the Court of Appeal Rules
It does. The substance of the request, not the use of the word 'certified', determines entitlement to the exclusion of time; the registrar's certificate of delay confirms the time taken to prepare and deliver the copy.
The court held that the primary intention of the letter dated 4th March 2024 was clear: to obtain a copy of proceedings to facilitate the filing of an appeal. Whether the proceedings were certified or not was immaterial. The duty to provide proceedings reposed in the registrar of the superior court, whose certificate of delay confirmed late delivery. The striking-out application raised only this point and was dismissed.
Whether the appeal is arguable for purposes of rule 5(2)(b)
Yes. The grounds of appeal, challenging the trial judge's analysis of evidence in a first appeal, deserve determination on merit.
The court noted that the appeal is a first appeal in which matters of fact and law fall for consideration. Without delving into the grounds so as not to embarrass the bench that would hear the appeal, it was satisfied the issues raised in the memorandum of appeal deserve the Court's determination on merit.
Whether the appeal would be rendered nugatory absent stay
Yes. Execution would involve eviction from land used for commercial farming since 1997, with unrebutted risk of sale to third parties, and losses not adequately compensable by damages.
The appellants deposed that enforcement would evict them from the disputed land, disrupt commercial farming and risk transfer to third parties; these assertions were not challenged. The respondent's claim to be a person of means capable of refunding the decretal sum was unsupported by evidence. The status quo prior to judgment should be maintained and the respondent can be compensated by damages should the appeal fail.
Legal principles established
#- An applicant under rule 5(2)(b) must establish both an arguable appeal and that the appeal will be rendered nugatory absent stay; both limbs must be demonstrated
- A request for 'certified copies of proceedings' satisfies the proviso to rule 84(1); the use of the word 'certified' does not disqualify an appellant from the exclusion of time, provided the application for the copy was made within thirty days and served as required
- An application to strike out an appeal under rule 86 must be filed within 30 days from the date of service of the record of appeal
Court orders
#- 1.The respondent's notice of motion dated 12th June 2024 seeking to strike out the appeal is dismissed
- 2.The appellants' notice of motion dated 23rd May 2024 seeking stay of execution pending appeal is allowed
- 3.Each party to bear their own costs in respect of both applications
- On appeal from
- Environment and Land Court, Garissa
- E&LC Case No. 4 of 2019
- Jurisdiction invoked
- Rule 5(2)(b) and Rules 84 and 86 of the Court of Appeal Rules (applications for stay of execution and striking out an appeal)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mohamed Omar Ahmed & 6 others v Dubey Mohamed Godad", Case Analysis (2024). Civil Application No. E074 of 2024 (as stated in the record as arising from Garissa E&LC Case No. 4 of 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1500/eng@2024-10-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.