Paul Mungai Kimani & 20 others v Attorney General & 4 others [2011] KECA 7 (KLR)
The bottom line
#Kenya's Court of Appeal protected Korogocho residents from eviction and demolition, ruling long occupation with Government approval raised serious constitutional rights.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the intended appeal is arguable
- 2.Whether the appeal would be rendered nugatory if the injunction sought pending the intended appeal were refused
Key legal issues
#Whether the intended appeal is arguable
The court held that the proposed grounds of appeal raise serious constitutional matters that cannot be dismissed as frivolous; the intended appeal is arguable.
The applicants raised prima facie serious constitutional matters, including the contention that the constitutional right to life means more than mere existence. The court examined the proposed grounds of appeal in the notice of motion and the supporting affidavit and was satisfied that they could not be characterised as frivolous, satisfying the first limb of the test for relief pending an intended appeal.
Whether the appeal would be rendered nugatory if the injunction were refused
The court held it would be wrong to allow the respondents to alienate, transfer, charge or subdivide the land, or to demolish the applicants' structures and evict them, pending the appeal; the nugatory limb was satisfied.
The applicants had occupied the Government land since the 1970s, and as late as November 2000 the Government was recognising their right to occupy the plots, with newspaper cuttings showing a presidential direction that they be settled and issued with title deeds. Demolition, eviction or alienation of the land before the appeal was determined would destroy the subject matter and render the appeal nugatory, so the respondents had to wait for final determination.
Source of the court's power to grant the injunction
The court held that Article 23(3)(b) of the Constitution authorises courts to grant an order of injunction for the purpose of enforcing the Bill of Rights.
In granting the injunction the court anchored its power in Article 23(3)(b) of the current Constitution, which authorises courts to grant injunctions for the enforcement of the Bill of Rights. This was significant because the applicants' underlying claim was framed as an constitutional claim for declaratory orders, and the court treated the injunction as a Bill-of-Rights enforcement remedy rather than a purely interlocutory civil remedy.
Legal principles established
#- Where applicants have been in long occupation of public land with the apparent explicit approval of the Government, an appellate court may restrain alienation, transfer, charge, subdivision, demolition or eviction pending the determination of an arguable appeal that would otherwise be rendered nugatory.
- Article 23(3)(b) of the Constitution authorises courts to grant an order of injunction for the purpose of enforcing the Bill of Rights.
Court orders
#- 1.The motion dated 16th August 2010 and lodged on 17th August 2010 is allowed
- 2.An order of injunction is granted as prayed for in paragraphs 1 and 2 of the said motion, maintaining the status quo until the intended appeal is lodged, heard and determined
- 3.Costs of the motion shall be in the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- H.C. Misc. Civil Application No. 1366 of 2005
- Jurisdiction invoked
- Inherent appellate jurisdiction to grant interim relief pending an intended appeal; Article 23(3)(b) of the Constitution relied on as authorising injunctions to enforce the Bill of Rights
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The applicants are raising, prima facie, serious constitutional matters.
We are satisfied that those grounds cannot be dismissed as being frivolous. We are satisfied the intended appeal is arguable.
we think that it would be wrong to allow the respondents to alienate, transfer, charge, subdivide the lands which the applicants having occupied for such along time and with the apparent explicit approval of the Government.
It would also be wrong to allow the respondents to demolish the structures erected on the land by the applicants and to in effect evict the applicants. The respondents must continue to wait for the final determination of the proposed appeal.
Accordingly, we allow the motion dated the 16th August, 2010 and lodged in the Court on 17th August, 2010 and grant the order of injunction as prayed for in paragraphs 1 and 2 of the said motion.
Article 23 (3) (b) authorizes courts to grant an order of injunction for the purpose of enforcing the Bill of Rights. The costs of the motion shall be in the appeal.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Paul Mungai Kimani & 20 others v Attorney General & 4 others [2011] KECA 7 (KLR)", Case Analysis (2011). Civil Application No. NAI. 202 of 2010 (UR. 145/2010). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2011/7/eng@2011-12-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.