Fredrick Wambari Chege v James Karume Wanjema & 2 others [2005] KECA 277 (KLR)
The bottom line
#Kenya's Court of Appeal stopped the sale of disputed farmland and the eviction of its long-time farmer until his ownership appeal is decided.
What this practically means
#Executive summary
#Key legal issues
#Test for the grant of an injunction pending appeal under rule 5(2)(b) of the Court of Appeal Rules
An injunction pending appeal preserves the status quo. Although the jurisdiction is discretionary, the order must be refused where the intended appeal is frivolous, where its refusal would not render the appeal nugatory, or where the injunction would inflict greater hardship than it would avoid.
The court restated the settled principles drawn from Madhupaper International Limited v Kerr and J.K Industries v Kenya Commercial Bank & Another. The discretion is judicial: it is exercised by asking whether the intended appeal is frivolous, whether refusal would render it nugatory, and whether the injunction would cause greater hardship than it would avoid. The court then measured the applicant's case against each limb before allowing the application, making these the governing principles for interlocutory appellate injunctions.
Whether the intended appeal was arguable - effect of the Land Control Act on the 1968 sale agreement
The contention that the applicant's possession became adverse in 1968 when the sale agreement became null and void for want of land control board consent, and that any subsequent permission to occupy was in furtherance of a void transaction and therefore illegal under section 22 of the Land Control Act, was arguable and not frivolous.
The sale agreement was dated 12 February 1968, after the Land Control Act (Cap 302) commenced on 12 February 1967. On appeal the applicant would argue that the agreement became null and void for failure to obtain land control board consent, so that possession became adverse in 1968; and that permission by the deceased to occupy the land after nullity was in furtherance of a void transaction and therefore illegal under section 22 of the Act. The court held those were not frivolous issues but arguable grounds.
Whether refusal of the injunction would render the appeal nugatory or inflict greater hardship
Refusal would have prejudiced the applicant: the land could probably have been alienated before the appeal was determined, and it would be inequitable to dispossess a long-standing occupier of land with six acres under tea. The status quo had to be maintained pending the appeal.
The applicant had occupied and used the land for many years - the third respondent's own letter of 23 November 2004 acknowledged use for more than thirty years - with six acres under tea bushes and two under cultivation. The land was by then registered in the third respondent's name, who claimed to have taken peaceful possession under a 24-hour guard, denying the applicant access to the land and tea bushes. Given the probability of alienation and the inequity of dispossession, the court found it just to maintain the status quo pending appeal.
Legal principles established
#- The purpose of an injunction pending appeal is to preserve the status quo pending appeal.
- An injunction pending appeal must not be granted where the intended appeal is frivolous, where its refusal would not render the intended appeal nugatory, or where the injunction would inflict greater hardship than it would avoid.
Court orders
#- 1.Application allowed
- 2.A temporary injunction restraining the respondents, whether by themselves, their servants, agents or employees, from selling, alienating, transferring or in any other way dealing with title number Gatamaiyu/Gachoiri/587 pending the hearing and determination of the appeal
- 3.A temporary injunction restraining the respondents from evicting the applicant from the said property or in any way interfering with the applicant's possession thereof pending the hearing and determination of the appeal
- 4.The costs of the application to be costs in the appeal
- On appeal from
- High Court of Kenya at Nairobi
- H.C.C.C No. 5610 of 1991 (O.S)
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules (application for an injunction pending the filing, hearing and determination of an intended appeal)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (4)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- In the Matter of Antow Trading Company Limited & In the Matter of an Application by Jacob Kikuru Ngoletum, Michael Lobuin Nenee, Mahmoud Chemwor Tarus for an Order Challenging the Restoration of the Company in the Register of Companies under Section 339 of the Companies Act, Cap 486[2018] KEHC 10004 (KLR)23 Jan 2018distinguished
- Joseph Kingsley Karuri Maina v Housing Finance Company of Kenya & another [2015] KEELC 569 (KLR)[2015] KEELC 569 (KLR)11 Mar 2015
- Alliance Media Kenya Ltd v Board of Governors ... (1st Defendant) & World Duty Free Co. Complex (4th Defendant)[2012] KEHC 3536 (KLR)9 Feb 2012applied
- Naresh Darbar v Thara Orchards Limited, J.S. Gathumbi T/A Gathumbi & Associates Co. Ltd & Haki Traders[2008] KEHC 395 (KLR)5 Dec 2008
Cite this brief
#Cite this brief
Caselaw, "Fredrick Wambari Chege v James Karume Wanjema & 2 others [2005] KECA 277 (KLR)", Case Analysis (2005). Civil Application No. NAI. 338 of 2004 (UR 177/04). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2005/277/eng@2005-01-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.