Milgo & 30 others v Disa Enterprises Limited & 4 others (Civil Application E190 of 2024) [2024] KECA 1603 (KLR)
The bottom line
#Kenya's Court of Appeal halted execution of a land judgment, protecting 31 Saika Estate home owners from eviction and demolition pending their appeal.
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, unless the orders sought are granted, the intended appeal, if successful, shall be rendered nugatory
Key legal issues
#Whether the twin principles for stay of execution under rule 5(2)(b) were satisfied
The Court found the intended appeal arguable (without expressing views on the merits) and found that execution involving demolition and eviction would render it nugatory, and granted the stay and maintenance of status quo.
The Court applied the settled twin test: arguability and nugatory aspect. It declined to elaborate on arguability to avoid embarrassing the appeal bench. On the nugatory aspect, it weighed the respondent's entitlement to the fruits of its judgment against the applicants' risk of demolition of homes and eviction after long occupation. The respondent did not rebut the allegation of inability to compensate, the onus of rebuttal lying on it. Both limbs having been satisfied, the Court granted the prayers in the notice of motion.
Legal principles established
#- An applicant under rule 5(2)(b) must satisfy the Court that the appeal or intended appeal is arguable and that, unless the orders sought are granted, the appeal if successful shall be rendered nugatory.
- Even one arguable ground of appeal suffices to establish arguability.
- A respondent alleging that it cannot compensate the applicant, if unrebutted, supports a finding of nugatory aspect; the onus of rebuttal lies on the party alleged to be unable to compensate.
Court orders
#- 1.Stay of execution of the judgment issued by the trial court on February 22, 2024 in ELC Case No. 478 of 2018 pending hearing of the intended appeal
- 2.Maintenance of the status quo in respect of properties known as LR. No. 209/11620 and LR No. 209/116199 pending hearing of the intended appeal
- 3.Costs of the application to abide the outcome of the intended appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Environment and Land Court (trial court)
- Nairobi ELC Case No. 478 of 2018
- Jurisdiction invoked
- Rule 5(2)(b) of the Rules of the Court of Appeal (stay of execution pending intended appeal)
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.
We have considered the competing interests between the parties and the need to preserve the substratum of the intended appeal.
The applicants have satisfied the twin principles which the court considers in applications brought under rule 5(2) (b) of its Rules. Consequently, we grant the prayers set out in the notice of motion dated April 16, 2024. The costs of the application shall abide the outcome of the intended appeal.
Issues in the judgment
#The names of the applicants and the 1st respondent are not fully stated in the judgment; only the 1st respondent's director (Anthony Masibo Difiu) and the 8th applicant (Benson Mwongela Likuanye) are named, so the case title is reconstructed from the descriptions in the judgment.
The second property referenced in the prayers, LR No. 209/116199, appears to be a typographical variant of LR No. 209/11620 and is not otherwise explained in the judgment.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Milgo & 30 others v Disa Enterprises Limited & 4 others (Civil Application E190 of 2024) [2024] KECA 1603 (KLR)", Case Analysis (2024). Civil Application No. Nai. E116 of 2024 (Rule 5(2)(b) application dated April 16, 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1603/eng@2024-11-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.