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Court of AppealAllowedCivil Application No. E017 of 2024 (Malindi)

Mohamed & another v Omar & 5 others (Civil Application E011 of 2024) [2024] KECA 1565 (KLR)

Court of Appeal of Kenya
8 November 2024
AMA. K. MurgorJLJ. LesiitGOG. V. Odunga
2,150 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~9 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal paused eviction orders from a Malindi land case, holding that eviction would make the intended appeal pointless before it could be heard.

What this practically means

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Executive summary

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This is a single-application ruling of the Court of Appeal at Mombasa, delivered on 8th November 2024 by a coram of Murgor, Lesiit and Odunga, JJA, under rule 5(2)(b) of the Court of Appeal Rules. The applicants sought stay of execution of a ruling by Njoroge, J in ELC Case No. 130 of 2015 (Malindi) pending an intended appeal. The underlying suit, decided by Odeny, J on 1st March 2022, found that portions of land nos. 7861, 3044 and 8980 Malindi had been illegally transferred and ordered revocation of the titles and a restraining order. Njoroge, J later dismissed an application to set aside the judgment by the 2nd applicant, allowed the 1st applicant to be joined only to facilitate execution against him, and directed the OCPD Malindi to assist with his eviction. The applicants filed a notice of appeal and this motion, contending an arguable appeal and that eviction would render it nugatory, relying on Article 50(1) and alleged overriding interests. The respondents countered that the applicants lacked capacity, that the property had passed to a third party, and that any prejudice was compensable in damages. The Court applied the twin principles from Stanley Kangethe Kinyanjui v Tony Ketter: it found one arguable ground sufficed and the appeal was not frivolous; on the nugatory limb it held eviction and possible demolition would irredeemably alter the suit property and damages would not suffice. The motion was allowed and its costs were made to abide the outcome of the appeal.

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, unless stay of execution is granted, the intended appeal will be rendered nugatory

Key legal issues

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01

Arguability of the intended appeal

Holding

The intended appeal is arguable and not frivolous; it challenges the eviction order issued against parties who claim not to have been heard.

Reasoning

The Court examined the draft memorandum of appeal, noting the applicants were unaware of the suit, the 1st applicant was in possession of part of the property, and the appeal challenged eviction orders in favour of respondents with no proprietary interest. One arguable ground suffices; the Court said little more to avoid embarrassing the bench that will hear the appeal.

p. 4
02

Nugatory value of the intended appeal

Holding

Execution would cause eviction and demolition irredeemably altering the property; damages would not adequately compensate, so the appeal would be rendered nugatory.

Reasoning

The Court weighed the applicants' apprehension of eviction and loss of their entire investment against the absence of any demonstrated prejudice to the respondents if stay was granted. Eviction and demolition would irredeemably alter the suit property's structure and character, and the property could be disposed of beyond the applicants' reach, making damages insufficient compensation.

p. 4

Legal principles established

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  • An applicant under rule 5(2)(b) must satisfy the twin test: the appeal is arguable and, if stay is not granted, the appeal will be rendered nugatory; one arguable ground suffices.
  • The nugatory test asks whether what is sought to be stayed is reversible or, if not, whether damages will reasonably compensate the aggrieved party.

Court orders

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  1. 1.Stay of execution of the ruling of Njoroge, J delivered on 23rd April 2024 in ELC Case No. 130 of 2015 pending the hearing and determination of the intended appeal
  2. 2.The Notice of Motion dated 25th April 2024 is allowed
  3. 3.Costs of the application to abide the outcome of the appeal

The bench

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

AM
majority
JL
majority
GO
majority
On appeal from
Environment and Land Court
ELC Case No. 130 of 2015 (Malindi)
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules

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 the upshot, we find that the applicants have satisfied this Court on the twin principles for grant of stay under rule 5 (2)(b) of this Court’s Rules. Accordingly, the Notice of Motion dated 25th April 2024 is merited and is hereby allowed. The costs of this application abide the outcome of the appeal.
p. 4Final orders - stay of execution granted
Even one arguable ground of appeal will sufice.
p. 4Arguability threshold under rule 5(2)(b)
whether or not an appeal will be rendered nugatory depends on whether or not what is sought to be stayed, if allowed to happen is reversible; or if it is not reversible whether damages will reasonably compensate the party aggrieved.
p. 4Nugatory test

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, "Mohamed & another v Omar & 5 others (Civil Application E011 of 2024) [2024] KECA 1565 (KLR)", Case Analysis (2024). Civil Application No. E017 of 2024 (Malindi). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1565/eng@2024-11-08

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