George Orango Orago v 1. George Liewa Jagalo 2. Ambrose Liewa 3. David Ochieng’ Liewa 4. Samwel Okello Orege 5. Rose Achieng Akech
The bottom line
#The Court of Appeal refused to preserve disputed land pending appeal because the registered owner can still sue trespassers and claim damages.
What this practically means
#Executive summary
#Key legal issues
#Whether the intended appeal was arguable
The Court found the intended appeal arguable on issues including the jurisdiction of the Magistrate to issue and confirm the grant of letters of administration and its effect on the applicant's title as a purchaser, the extent to which the applicant's title could be challenged on the allegation that the 5th respondent lacked capacity, and whether land registered under the Registered Land Act could still be trust land subject to customary land usages.
The Court perused the record, the submissions and the draft memorandum of appeal. It identified three specific arguable points, including the effect on a purchaser's title of a finding that the Magistrate lacked jurisdiction, noting the applicant may or may not have had notice of that defect, and the question whether registered land can nonetheless be held subject to customary trust.
Whether refusal of the injunction would render the intended appeal nugatory
The Court held the appeal would not be rendered nugatory if the injunction were refused because the applicant remains the registered owner with title documents; no one can dispose of the land or use it to obtain a loan, any entry by the respondents would be trespass actionable at law, and devaluation of the land would be compensable in damages.
The Court noted it was not disputed that the applicant is still the registered owner with title documents. Anyone dealing with the land without consent would be a trespasser, and the applicant had already pleaded general damages for trespass in his plaint. Damages were therefore an adequate remedy, so the second limb of the rule 5(2)(b) test failed.
Legal principles established
#- An applicant under rule 5(2)(b) must satisfy the Court on two cumulative limbs: that the appeal or intended appeal is arguable (not frivolous), and that the success of the appeal would be rendered nugatory if the Court refuses the application; failure on either limb is fatal.
Court orders
#- 1.The notice of motion dated 18th February 2009 seeking an injunction pending appeal is dismissed
- 2.Costs of the application shall be in the intended appeal
- On appeal from
- High Court of Kenya at Kisii
- Kisii H.C.C.C. No. 19 of 2008
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules (injunction pending appeal)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "George Orango Orago v 1. George Liewa Jagalo 2. Ambrose Liewa 3. David Ochieng’ Liewa 4. Samwel Okello Orege 5. Rose Achieng Akech", Case Analysis (2009). Civil Appli 41 of 2009. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2009/322/eng@2009-05-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.