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Court of AppealDismissedCivil Appli 29 of 2009 (UR 14/2009)· [2009] KECA 378 (KLR)

Peter Paul Mburu Ndururi v James Macharia Njore [2009] KECA 378 (KLR)

Court of Appeal of Kenya
13 March 2009
SBS.E.O. BosireEOE.O. O'KubasuDAD.K.S. Aganyanya
957 words in judgment
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The bottom line

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Kenya's Court of Appeal dismissed a bid to block the sale of Thika land because the buyer had to prove two things, and proved neither.

What this practically means

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Executive summary

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This is a single-judgment ruling of a three-judge bench of the Court of Appeal at Nairobi (Bosire, O'Kubasu and Aganyanya, JJA) on an application under rule 5(2)(b) of the Court of Appeal Rules for an injunction pending an intended appeal against the judgment of Ang'awa, J in H.C.C.C. No. 807 of 1997 (delivered 10th April 2008). The applicant, the unsuccessful plaintiff, sought to restrain the respondent from selling, transferring, disposing of or encumbering L.R. No. 13537/122, Thika Municipality. The underlying suit concerned a 1986 sale of a plot (then part of L.R. 46166/2) with the purchase price duly paid; the trial court found a valid sale agreement of an identified plot but could not find fraud or that Land Control Board consent was necessary, suggesting instead a claim for specific performance or refund. The Court restated that a rule 5(2)(b) applicant must satisfy both the arguable-appeal test and the nugatory-justice test. It found the evidence at variance with the pleadings, could not discern any arguable point, and noted uncontroverted affidavit evidence that the parcel had already been sold to a third party, Caroline Wambui Mahindi, so the application had been overtaken by events. The motion was dismissed with costs. The decision below was not disturbed; this ruling dealt only with interim relief.

Key legal issues

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Whether an applicant for an injunction pending appeal under rule 5(2)(b) must establish both an arguable appeal and that the appeal would be rendered nugatory absent the injunction

Holding

Yes; both tests must be satisfied. The applicant failed because no arguable point was discernible and the subject property had already been sold to a third party, making the application moot in effect.

Reasoning

The Court restated the twin principles governing rule 5(2)(b) applications: arguability and nugatory effect. It found the evidence before it at variance with the pleadings, could not discern any arguable point, and noted uncontroverted affidavit evidence that the parcel had been resold to Caroline Wambui Mahindi, meaning the application had been overtaken by events.

p. 2

Legal principles established

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  • An applicant under rule 5(2)(b) must satisfy both the arguability test and the nugatory test; satisfying one without the other is insufficient.

Court orders

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  1. 1.The motion dated 9th February 2009 and filed on 11th February 2009 is dismissed with costs

Authorities

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Legislation

  • Court of Appeal Rulesrule 5(2)(b)
On appeal from
High Court of Kenya at Nairobi
H.C.C.C. No. 807 of 1997
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules (application for injunction pending appeal)

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, "Peter Paul Mburu Ndururi v James Macharia Njore [2009] KECA 378 (KLR)", Case Analysis (2009). Civil Appli 29 of 2009 (UR 14/2009). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2009/378/eng@2009-03-13

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