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Stanley Kangethe Kinyanjui V Tony Ketter & 5 Others [2013] EKLR
Case Number: Civil Application 31 of 2012	Date Delivered: 22 Feb 2013

Judge: Wanjiru Karanja, William Ouko, Patrick Omwenga Kiage

Court: Court of Appeal at Nairobi

Parties: Stanley Kangethe Kinyanjui v Tony Ketter, Salim Suleiman, Mawji Patel, Innocent Maisiba Toyo, Deputy Registrar High Court of Kenya at Eldoret, Paul Gicheru Of Gicheru & Co. Advs & Commissioner of Land

Advocates:

Citation: Stanley Kangethe Kinyanjui V Tony Ketter & 5 others [2013] eKLR

SCOPE AND PRINCIPLES APPLICABLE UNDER RULE 5 (2) OF THE COURT OF APPEAL RULES

Reported by Phoebe Ayaya and Derrick Nzioka

Issues

Whether the scope of Rule 5 (2) of the Court of Appeal Rules was exercisable in the present suit.
Whether on application of the principles under Rule 5 (2) of the Court of Appeal Rules, the Court had the jurisdiction to exercise its discretion

Civil Procedure and Practice - jurisdiction of the Court of Appeal – discretion of the court in exercise of its jurisdiction under Rule 5 (2) of the Court of Appeal rules – scope of application of the rule – principles on which the Court acts in exercising its jurisdiction under the rule - Rule 5 (2) of the Court of Appeal rules. Read More...

Held:

From precedent on Rule 5(2)(b) of the Court of Appeal rules, the common vein running through the cases and the jurisprudence underlying the decisions could be summarized as follows:
In dealing with Rule 5(2) (b) the court exercised original and discretionary jurisdiction and that exercise did not constitute an appeal from the trial judge's discretion to the court.

The discretion of this court under the rule to grant a stay or injunction was wide and unfettered provided it was just to do so.

The court became seized of the matter only after the notice of appeal had been filed under Rule 75.

In considering whether an appeal would be rendered nugatory the court had to bear in mind that each case depended on its own facts and peculiar circumstances.

An applicant had to satisfy the court on both of the twin principles.

On whether the appeal was arguable, it was sufficient if a single bona fide arguable ground of appeal was raised.

An arguable appeal was not one which had to necessarily succeed, but one which ought to be argued fully before the court; one which is not frivolous.

In considering an application brought under the rule the court must have not made definitive or final findings of either fact or law at that stage as doing so could embarrass the ultimate hearing of the main appeal.

The term “nugatory” had to be given its full meaning. It did not only mean worthless, futile or invalid. It also meant trifling.

Whether or not an appeal would be rendered nugatory depended on whether or not what was sought to be stayed if allowed to happen was reversible; or if it was not reversible whether damages would reasonably compensate the party aggrieved.

Where it was alleged by the applicant that an appeal would be rendered nugatory on account of the respondent's alleged impecunity, the onus shifted to the latter to rebut by evidence in the claim.

Application allowed.

Agneskasyoka Ibrahim V Republic[2012]eKLR
Case Number: Criminal Appeal 116 of 2008	Date Delivered: 13 Dec 2012

Judge: John walter Onyango Otieno, David Kenani Maraga, Wanjiru Karanja

Court: Court of Appeal at Nyeri

Parties: Agneskasyoka Ibrahim v Republic

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Citation: Agneskasyoka Ibrahim v Republic[2012]eKLR

Jane Wanjiru Muchiri V Phoebe Watetu Muchiri [2012]eKLR
Case Number: Civil Appeal 29 of 2008	Date Delivered: 13 Dec 2012

Judge: David Kenani Maraga, Erastus Mwaniki Githinji, Roselyn Naliaka Nambuye

Court: Court of Appeal at Nyeri

Parties: Jane Wanjiru Muchiri v Phoebe Watetu Muchiri

Advocates:

Citation: Jane Wanjiru Muchiri v Phoebe Watetu Muchiri [2012]eKLR

Peter Mwenda Njagi V Margaret Wambui Njogu & 4 Others [2012]eKLR
Case Number: Civil Appeal 74 of 2008	Date Delivered: 13 Dec 2012

Judge: David Kenani Maraga, Erastus Mwaniki Githinji, Wanjiru Karanja

Court: Court of Appeal at Nyeri

Parties: Peter Mwenda Njagi v Margaret Wambui Njogu & 4 others

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Citation: Peter Mwenda Njagi v Margaret Wambui Njogu & 4 others [2012]eKLR

Nyeri Farmers Sacco Ltd V Rosalinda Nyachomba & 39 Others [2012] EKLR
Case Number: Civil Appeal 65 of 2008	Date Delivered: 13 Dec 2012

Judge: John walter Onyango Otieno, David Kenani Maraga, Wanjiru Karanja

Court: Court of Appeal at Nyeri

Parties: Nyeri Farmers Sacco Ltd v Rosalinda Nyachomba & 39 others

Advocates:

Citation: Nyeri Farmers Sacco Ltd v Rosalinda Nyachomba & 39 others [2012] eKLR

Ntika Munoru & Another V Isaac Kaberia Etirikia [2012]eKLR
Case Number: Civil Appeal 278 of 2007	Date Delivered: 11 Dec 2012

Judge: David Kenani Maraga, Erastus Mwaniki Githinji, Wanjiru Karanja

Court: Court of Appeal at Nyeri

Parties: Ntika Munoru & another v Isaac Kaberia Etirikia

Advocates:

Citation: Ntika Munoru & another v Isaac Kaberia Etirikia [2012]eKLR

Francis Nkunja Tharamba V Republic [2012]eKLR
Case Number: Criminal Appeal 72 of 2005	Date Delivered: 11 Dec 2012

Judge: John walter Onyango Otieno, David Kenani Maraga, Wanjiru Karanja

Court: Court of Appeal at Nyeri

Parties: Francis Nkunja Tharamba v Republic

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Citation: Francis Nkunja Tharamba v Republic [2012]eKLR

JOSHUA NYAMACHE T. OMASIRE V CHARLES KINANGA MAENA [2012] EKLR
Case Number: Civil Appeal 151 of 2012	Date Delivered: 28 Nov 2012

Judge: J.W. Onyango Otieno, Alnashir Visram & R.N. Nambuye

Court: Court of Appeal at Kisumu

Parties: JOSHUA NYAMACHE T. OMASIRE v CHARLES KINANGA MAENA

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Citation: JOSHUA NYAMACHE T. OMASIRE v CHARLES KINANGA MAENA [2012] eKLR

LAWRENCE AYUKU MAINA V REPUBLIC[2012]eKLR
Case Number: Criminal Appeal 648 of 2010	Date Delivered: 28 Nov 2012

Judge: ALNASHIR VISRAM, R. N. NAMBUYE & D. K. MARAGA

Court: Court of Appeal at Kisumu

Parties: LAWRENCE AYUKU MAINA V REPUBLIC

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Citation: LAWRENCE AYUKU MAINA V REPUBLIC[2012]eKLR

SEVENTH DAY ADVENTIST CHURCH ) EAST AFRICA LTD & 2 OTHERS V MASOSA CONSTRUCTION COMPANY LIMITED[2012]eKLR
Case Number: Civil Appeal 157 of 2006	Date Delivered: 28 Nov 2012

Judge: J.W. ONYANGO OTIENO, ALNASHIR VISRAM & R.N. NAMBUYE

Court: Court of Appeal at Kisumu

Parties: SEVENTH DAY ADVENTIST CHURCH EAST AFRICA LTD & 2 OTHERS V MASOSA CONSTRUCTION COMPANY LIMITED

Advocates:

Citation: SEVENTH DAY ADVENTIST CHURCH ) EAST AFRICA LTD & 2 OTHERS V MASOSA CONSTRUCTION COMPANY LIMITED[2012]eKLR