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Court of AppealAllowedCivil Application No. NAI. 153 of 1998

Faraj Maharus v J. B. Martin Glass Industries & another [1998] KECA 152 (KLR)

Court of Appeal of Kenya
17 July 1998
571 words in judgment
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The bottom line

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Kenya's Court of Appeal stopped an eviction, ruling that a family facing homelessness has a right to be heard even against a registered title.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Mombasa (Chesoni CJ, Kwach and Owuor JJA) on an application under rule 5(2)(b) of the Court of Appeal Rules for a temporary injunction pending appeal. The applicant, Faraj Maharus, suing as administrator of the estate of his late mother, had filed suit against the respondents, the Urban Council of Mariakani and the Commissioner of Lands, seeking an injunction and an order compelling the Commissioner to cancel the title issued to the first respondent and issue title to him. The respondents applied to strike out the suit under Order 6 rule 13 of the Civil Procedure Rules as frivolous, vexatious and an abuse of process. Waki J allowed that application, relying on section 23(1) of the Registration of Titles Act and Michael Kimotho v Nicholas Mugo, holding the first respondent's title unimpeachable. The Court of Appeal held the intended appeal arguable: a Letter of Allotment dated 21st June 1995 offered the same property to the applicant, who paid Shs 74,140/- in full, and the applicant's family had lived on the land since 1926. The court found the respondents would suffer no prejudice from an injunction, whereas refusal would render the applicant and his family homeless without a hearing. The application was allowed and an injunction issued restraining eviction or interference with possession pending the intended appeal, with costs of the application in the appeal. The decision binds subordinate courts on the rule 5(2)(b) test of arguability and irreparable hardship.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the applicant has an arguable appeal
  2. 2.Whether, if the injunction is not granted, the applicant will suffer irreparable loss which cannot be compensated by damages

Key legal issues

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01

Arguability of the intended appeal

Holding

The court found the appeal arguable because a Letter of Allotment dated 21st June 1995 offered the same property to the applicant, who paid the consideration in full, contradicting the respondents' claim of an unimpeachable title.

Reasoning

The High Court had struck out the suit relying on section 23(1) of the Registration of Titles Act and the case of Michael Kimotho v Nicholas Mugo, treating the first respondent's title as unimpeachable. The Court of Appeal, however, noted the Letter of Allotment to the applicant and full payment, concluding the applicant's case was not so hopeless that it should not go to trial, and that the intended appeal was arguable.

p. 2
02

Irreparable harm / balance of convenience

Holding

Eviction of the applicant and his family, resident on the land since 1926, would cause great hardship not compensable in damages, while the respondents would suffer no prejudice from the injunction.

Reasoning

The court weighed the prejudice to each side. The respondents would not be prejudiced by the injunction, whereas refusal would leave the applicant and his family evicted and homeless without being heard. This satisfied the second limb of the rule 5(2)(b) test and justified the injunction pending appeal.

p. 2

Legal principles established

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  • An applicant under rule 5(2)(b) must demonstrate an arguable appeal and that irreparable harm will result if the order sought is not granted; where the applicant and family face eviction and homelessness, such hardship justifies an injunction pending appeal even against a party asserting an allocated title.

Court orders

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  1. 1.Order of injunction restraining the respondents, their servants and agents, from evicting the applicant from the suit property or interfering with his possession and enjoyment pending the hearing and determination of the intended appeal or further order
  2. 2.Costs of the application to be in the appeal

The bench

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

majority
majority
majority
On appeal from
High Court of Kenya at Mombasa
H.C.C.C. No. 447 of 1995
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.

We are accordingly satisfied that the applicant has an arguable appeal. We allow the application an issue and order of injunction restraining the respondents, their servants and agents, from evicting the applicant from the suit property or interfering with his possession and enjoyment pending the hearing and determination of the intended appeal or further order.
p. 2final orders - injunction pending appeal granted
The applicant and his family have been living on the suit property since 1926 and it is unacceptable that they should just be thrown into the cold without being told where they should go.
p. 2irreparable hardship
On the face of this evidence, we cannot accept Mr Gikandi's submission that the applicant's case is so hopeless, it should not go to trial.
p. 2arguability of appeal

Issues in the judgment

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minor

The coram lists Chesoni as Chief Justice but the signature block styles him 'JUDGE OF APPEAL'.

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, "Faraj Maharus v J. B. Martin Glass Industries & another [1998] KECA 152 (KLR)", Case Analysis (1998). Civil Application No. NAI. 153 of 1998. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1998/152/eng@1998-07-17

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