Kiura Kigundu v David Muriithi & 5 others [2011] KECA 163 (KLR)
The bottom line
#The Court of Appeal stopped the sale of family land pending appeal, confirming you need only an arguable appeal plus risk of losing everything to get protection.
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 applicant has an arguable appeal against the High Court's dismissal of his leave application for judicial review
- 2.Whether the success of the appeal would be rendered nugatory unless an injunction is granted pending appeal
Key legal issues
#Test for grant of injunction pending appeal under rule 5(2)(b)
The twin principles for rule 5(2)(b) relief are an arguable appeal and the nugatory-ness of the appeal's result; once both are satisfied the Court will exercise its discretion in the applicant's favour.
The Court restated the settled principles: the applicant must demonstrate an arguable appeal that is not frivolous, and additionally show that success of the appeal would be rendered nugatory absent the order. Counsel for the respondents conceded that if the appeal was arguable, failure to grant the injunction would render its result nugatory because the land would be subdivided and disposed of before the appeal was concluded. Both limbs were met, so the injunction issued.
Whether the appeal was arguable
Grounds of appeal substantially raising points of law suffice to make an appeal arguable for purposes of rule 5(2)(b).
The memorandum of appeal, though home-made, listed four grounds attacking the High Court's dismissal of the leave application, including that the tribunal acted outside its statutory powers under section 3 of the Land Disputes Tribunals Act. The Court found the grounds substantially raised points of law and were not frivolous, which made the appeal arguable; it did not need to establish that the appeal would succeed.
Legal principles established
#- An applicant under rule 5(2)(b) of the Court of Appeal Rules must show both an arguable appeal and that the appeal will be rendered nugatory unless the order sought is granted.
Court orders
#- 1.Prayer (b) of the application dated 3rd March 2010 allowed - temporary injunction restraining the first to fourth respondents from selling, disposing, alienating, transferring or in any manner interfering with land parcel Ngariama/Kabare/225 pending the hearing of the appeal
- 2.Costs of the application to 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 Embu
- H.C. Misc. C. Appl. No. 5 of 2010
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules
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.
An applicant is obliged to show that he has an arguable appeal or that his intended appeal is not frivolous. In addition he is obliged to show that the success of that appeal or intended appeal will be rendered nugatory unless the Court grants him the order of injunction or stay as the case may be
We therefore allow prayer (b) of the application dated 3rd March, 2010 and direct that the costs thereof shall be in the appeal. It is so ordered.
Issues in the judgment
#The ruling refers to the respondents' counsel appearing for 'the 5th, 6th and 7th respondents' although the cause title lists only six respondents.
The cause title describes the application as seeking an injunction pending an appeal lodged on 5th March 2010 in H.C. Misc. C. Appl. No. 5 of 2010, but the body identifies that number as the Court of Appeal appeal lodged at Nyeri.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kiura Kigundu v David Muriithi & 5 others [2011] KECA 163 (KLR)", Case Analysis (2011). Civil Application No. NAI 92 of 2010 (UR 67/2010). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2011/163/eng@2011-07-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.