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Court of AppealPartially AllowedCivil Application Nai. 185 & 186 of 2009· [2009] KECA 134 (KLR)

KENYA ANTI-CORRUPTION COMMISSION v BHANGRA LIMITED & ANOTHER [2009] KECA 134 (KLR)

Court of Appeal of Kenya
9 October 2009
2,866 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal froze two Mombasa plots allegedly taken from a road reserve, protecting public land while the anti-corruption appeals are decided.

What this practically means

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Executive summary

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This is a consolidated ruling of the Court of Appeal at Nairobi (O'Kubasu, Githinji and Waki JJA) on two applications by the Kenya Anti-Corruption Commission under Rule 5(2)(b) of the Court of Appeal Rules, seeking injunctions and stays of proceedings pending appeals against a composite ruling of Sergon J of 19 February 2008. The High Court had dismissed KACC's applications for interlocutory injunctions in three suits seeking recovery of plots Mombasa Island/Block XI/936, 937 and 939, allegedly illegally excised from the Tom Mboya Avenue road reserve and unlawfully allocated by the 2nd respondent, a former Commissioner of Lands, to Bhangra Limited. The High Court dismissed the injunction applications on the grounds that the suits were a non-starter for non-joinder of the Commissioner of Lands and that any loss was quantifiable in damages. KACC appealed in Civil Appeals Nos. 112, 113 and 115 of 2008, but brought these Rule 5(2)(b) applications only in respect of plots 936 and 937. The Court of Appeal was satisfied the appeals were arguable, noting the litigation sought recovery of public land and that the Permanent Secretary, Ministry of Roads, had verified the encroachment and its effects on road safety. The Court held that the trial judge had made conclusive findings of law and fact at an interlocutory stage, prejudicial to the pending suits, and that unless the plots were preserved the appeals would be rendered nugatory and the public would suffer substantial loss. Both applications were allowed in the terms prayed, with injunctions and stays of proceedings granted pending determination of the respective appeals, and costs of the applications made costs in the appeals. No relief was granted in respect of plot 939, no application having been filed for it.

Key legal issues

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01

Arguability of the appeals

Holding

The appeals were not frivolous; the litigation concerned recovery of public land allegedly excised from a road reserve and illegally allocated, supported by the Permanent Secretary's letter verifying encroachment

Reasoning

The court considered the ruling, grounds of appeal, affidavits and submissions and was satisfied the appeals were arguable. The litigation sought recovery of public land excised from a road reserve, with the Ministry of Roads confirming the encroachment and its effects on road safety and aesthetics, so the appeals raised serious issues.

p. 5
02

Nugatory value and preservation of the subject matter

Holding

Unless the plots were preserved, the appeals if successful would be rendered nugatory and the public would suffer substantial loss; it was just and equitable to preserve the plots pending appeal

Reasoning

The court reasoned that the purpose of an injunction pending appeal is to preserve the subject matter of litigation. The plots had not been developed, and alienation or development pending appeal would change the substratum of the suits and deny the public use of the road, so preservation orders were warranted.

p. 5
03

Stay of proceedings in the superior court

Holding

A stay of proceedings was justified because the superior court made conclusive findings of law and fact at an interlocutory stage, including that non-joinder of the Commissioner of Lands rendered the suits a non-starter, which was prejudicial to the pending suits

Reasoning

The trial judge had made final findings at interlocutory stage - that the suits were a non-starter for non-joinder of the Commissioner of Lands - and the 1st respondent had filed applications to strike out the suits based on that finding. Since the appeals sought reversal of those findings, staying proceedings was necessary to prevent prejudice.

p. 5

Legal principles established

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  • Under Rule 5(2)(b) an applicant must satisfy the court both that the appeal is arguable and that, if successful, it would be rendered nugatory absent the orders sought
  • The purpose of an injunction pending appeal is preservation of the subject matter of the litigation
  • An appellate court does not normally interfere with the exercise of judicial discretion by a trial court unless it is shown the discretion was not judicially exercised

Court orders

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  1. 1.An order of injunction restraining the 1st respondent from taking possession, developing or in any other way dealing with plot Mombasa Island/Block XI/936 pending the hearing and determination of Civil Appeal No. 112 of 2008
  2. 2.A stay of further proceedings in Mombasa H.C.C.C. No. 201 of 2007 pending the hearing and determination of Civil Appeal No. 112 of 2008
  3. 3.An order of injunction in the same terms in respect of plot Mombasa Island/Block XI/937 pending the hearing and determination of Civil Appeal No. 113 of 2008
  4. 4.A stay of proceedings in Mombasa H.C.C.C. No. 202 of 2007 pending the determination of Civil Appeal No. 113 of 2008
  5. 5.Costs of each application to be costs in the respective appeals

Authorities

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Legislation

  • Anti-Corruption and Economic Crimes ActSection 6(1)
  • Anti-Corruption and Economic Crimes ActSection 7(1)(h)
  • Anti-Corruption and Economic Crimes ActSection 7(2)
  • Court of Appeal RulesRule 5(2)(b)
  • Government Lands ActSection 3
  • Local Government ActSection 185
  • Local Government ActSection 192
  • Registered Land ActSection 39

Cases cited (1)

  • Giella vs. Cassman & Co. Ltd.
    [1973] EA 358
On appeal from
High Court of Kenya at Mombasa
H.C.C.C. No. 201 of 2007 and H.C.C.C. No. 202 of 2007
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules

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, "KENYA ANTI-CORRUPTION COMMISSION v BHANGRA LIMITED & ANOTHER [2009] KECA 134 (KLR)", Case Analysis (2009). Civil Application Nai. 185 & 186 of 2009. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2009/134/eng@2009-10-09

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