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Court of AppealAllowedCivil Application No NAI 181 of 2002

Law Society of Kenya v Commissioner of Lands & 2 Others

Court of Appeal
28 February 2003
RKR.O. KwachPhilip Kiptoo TunoiP.K. TunoiASA.B. Shah
574 words in judgment
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The bottom line

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Kenya's Court of Appeal froze any dealings with land under the Eldoret High Court, ruling the Law Society of Kenya's challenge was worth hearing.

What this practically means

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Executive summary

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The Law Society of Kenya applied to the Court of Appeal at Nakuru under rule 5(2)(b) of the Court of Appeal Rules for maintenance of the status quo concerning plots Eldoret Municipality Block 4/53 and 4/55, the land on which the Eldoret High Court buildings stand, pending an intended appeal against a ruling of Ombija J dated 19 December 2001. The High Court had upheld preliminary objections and held that the Society had no locus standi to sue on its own behalf, on behalf of its members, or on behalf of the public, following the allocation of the plots to Lima Limited, the second respondent. Applying the established two-limb test, the Court of Appeal found the intended appeal arguable on two points: first, that the Society is a statutory body created by the Law Society of Kenya Act, Cap 18, with a common seal, and therefore need not sue as an ordinary society under the Societies Act; and second, that the Society's interests could well merge with those of the Judiciary in preserving the land on which the Eldoret High Court stands. On the nugatory limb, the court held that if the parcels were alienated the High Court building would belong to someone else, an outcome that could not be allowed. The court ordered that the status quo then obtaining remain in force pending the hearing and determination of the intended appeal, with the costs of the application to be costs in the intended appeal. The ruling is interlocutory and does not disturb the High Court decision; it binds no court on the merits but preserves the subject matter. The judgment is a single unanimous ruling of the full bench of Kwach, Tunoi and Shah JJ A.

Questions the Court framed

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

  1. 1.Whether the Society has an arguable appeal
  2. 2.Whether success in the intended appeal would be rendered nugatory if the status quo sought is not granted

Key legal issues

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01

Arguability of the intended appeal against the striking out of the Society's suit for lack of locus standi

Holding

The appeal is arguable: the Society is a statutory body with a common seal and need not sue under the Societies Act, and its interests may merge with those of the Judiciary in preserving the land.

Reasoning

The court identified two arguable points: first, that as a statutory body created by the Law Society of Kenya Act the Society need not sue as a society under the Societies Act (otherwise Order 1 rule 8 CPR would apply); second, that its interests could merge with the Judiciary's in preserving the land on which the Eldoret High Court stands. Two arguable points suffice.

p. 2
02

Nugatory value of the intended appeal

Holding

Success would be rendered nugatory if status quo is not maintained, since alienation of the plots would divest the High Court building to a third party.

Reasoning

The court found the nugatory limb easily satisfied: if the second respondent alienated the parcels on which the Eldoret High Court buildings stand, the building would belong to someone else, an outcome that could not be allowed to happen pending appeal.

p. 2

Legal principles established

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  • On a rule 5(2)(b) application the court need only be satisfied that the intended appeal is arguable and that its success would be rendered nugatory absent interim relief.
  • The Law Society of Kenya is a statutory body created by the Law Society of Kenya Act, Cap 18, and need not sue as an ordinary society under the Societies Act.

Court orders

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  1. 1.Status quo now obtaining to remain in force pending the hearing and determination of the intended appeal
  2. 2.Costs of the application to be costs in the intended appeal

The bench

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

RK
majority
Philip Kiptoo Tunoi
majority
AS
majority
On appeal from
High Court at Nakuru (delivered at Nairobi)
High Court Civil Case No 464 of 2000
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.

At this stage we only have to decide if the Society has an arguable appeal and whether success in the intended appeal would be rendered nugatory if the status quo sought is not granted.
p. 1Test on rule 5(2)(b) applications
It is clear that the Society is a statutory body created by an Act of Parliament, viz, the Law Society of Kenya Act, Cap 18, Laws of Kenya.
p. 2Status of the Law Society of Kenya
Considering all the circumstances of the matter before us we order that the status quo now obtaining do remain in force pending the hearing and determination of the intended appeal.
p. 2Final orders - status quo pending appeal

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (4)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Law Society of Kenya v Commissioner of Lands & 2 Others", Case Analysis (2003). Civil Application No NAI 181 of 2002. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2003/190/eng@2003-02-28

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