Hubert L. Martin & 2 Others Vs Margaret Kamar & 3 Others [2002] KECA 200 (KLR)
The bottom line
#Kenya's Court of Appeal froze a disputed Nakuru land parcel, stopping both sides from touching it until an appeal over the duelling title deeds is decided.
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 applicants should be granted an injunction pending the lodgment and determination of their intended appeal against the ruling of Rimita J.
- 2.Whether the intended appeal is arguable.
- 3.Whether any injunction should be granted on terms maintaining the status quo on the suit property.
Key legal issues
#Whether an injunction should issue pending the lodgment and determination of an intended appeal where both parties hold certificates of title to the same parcel.
Yes. The Court granted the application and ordered an injunction restraining the respondents and their agents from trespassing onto or interfering with parcel No. NAKURU MUNICIPALITY/BLOCK 16/219 until the final determination of the applicants' intended appeal, while requiring the applicants to stop further development of the property within the same period.
The dispute concerned land to which both sides held certificates of title, each claiming the better title. The High Court had refused the applicants a temporary injunction on two grounds: lack of locus standi to hold landed property, and the respondents' better title despite being later in time. The applicants lodged a notice of appeal and sought preservation pending the appeal. Respondents' counsel conceded arguability and proposed status quo terms, to which applicants' counsel agreed. The Court adopted that consensus, granting the injunction on reciprocal terms and reserving costs to the intended appeal.
Whether the intended appeal was arguable for purposes of rule 5(2)(b).
Arguability was conceded, not adjudicated. Counsel for the respondents conceded that the intended appeal was arguable and asked only that any injunction be on terms maintaining the status quo pending determination of the appeal.
The Court recorded the respondents' concession of arguability and their request for status quo terms. Because applicants' counsel was agreeable, no contested analysis of the merits or of nugatory-ness was undertaken, and the application was disposed of on agreed terms. The ruling therefore rests on consent rather than an adjudicated application of the rule 5(2)(b) test, which limits its precedential weight on how that test is applied in contested motions.
Legal principles established
#- On an application under rule 5(2)(b) of the Court of Appeal Rules, where the suit property is held under competing certificates of title and the intended appeal is arguable, the Court may grant an injunction preserving the property until the intended appeal is determined.
- An injunction pending an intended appeal may be granted on reciprocal status quo terms, requiring the applicant as much as the respondent to refrain from altering the position on the ground.
Court orders
#- 1.The application dated 15th June, 2001 is granted.
- 2.An injunction issues restraining the respondents, by themselves and/or their agents, from trespassing onto or interfering with parcel No. NAKURU MUNICIPALITY/BLOCK 16/219 until the final determination of the applicants' intended appeal.
- 3.The applicants to stop further development of the property within the same period.
- 4.The costs of the application shall be in the intended appeal.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nakuru
- H.C.C.C. No. 473 of 2000
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules (referred to in the ruling as 'rule 5 (2) (b) of the Rules of this Court')
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.
The dispute between the parties in the application concerns property to which both have certificates of title and each of them claims to have a better title to it than the other.
The superior court declined to grant a temporary injunction to the applicants against the respondents on the ground that the applicants lacked the locus standi to hold landed property, and also on the ground that the respondents, although their title is later in time to that of the applicant, had a better title to the property in dispute.
Counsel for the respondents concedes that the intended appeal is arguable and prays that, if we are minded to grant the injunction prayed for then it should be on terms that the status quo on the property be maintained pending the determination of the intended appeal.
order that an injunction issues restraining the respondents by themselves and or their agents from trespassing onto or interfering with parcel No. NAKURU MUNICIPALITY/BLOCK 16/219 until the final determination of the applicants' intended appeal
The applicant to stop further development of the property within the same period.
The costs of the application shall be in the intended appeal.
Issues in the judgment
#The application heading describes the motion as one for 'stay of execution in an intended appeal', but the body and the orders treat it as an application for an injunction under rule 5(2)(b); the relief sought and granted was an injunction, not a stay.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
Cite this brief
#Cite this brief
Caselaw, "Hubert L. Martin & 2 Others Vs Margaret Kamar & 3 Others [2002] KECA 200 (KLR)", Case Analysis (2002). Civil Application No. NAI 263 of 2001 (143/01 UR). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2002/200/eng@2002-02-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.