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Court of AppealDismissedCivil Application No. NAI 101 of 2012 (UR 79/2012)· [2013] KECA 495 (KLR)

Isaac Gathungu Wanjohi & another v Attorney General & 6 others [2013] KECA 495 (KLR)

Court of Appeal
5 July 2013
KKKihara KariukiDMDaniel MusingaWilliam OukoW. Ouko
1,828 words in judgment
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The bottom line

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Kenya's Court of Appeal ruled that keeping a two-part test for injunctions pending appeal, rejecting claims that fairness considerations expanded it.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Nairobi (Kihara Kariuki, P, Musinga and Ouko, JJ.A) on a motion dated 10th April 2012 seeking an injunction pending the lodging, hearing and determination of an intended appeal against the judgment of the High Court (Majanja, J) of 30th March 2012 in Nairobi Petition No. 154 of 2011. The High Court had dismissed the applicants' petition claiming violation of their Article 40 property rights over L.R. No. 209/12052, but declared Gazette Notice No. 9230 of 29th July 2011 (revoking their title) null and void and awarded them Kshs. 2,000,000 as general damages for breach of Article 47. Both sides filed notices of appeal. Dr. Kamau Kuria for the applicants argued that Article 159 of the Constitution and Sections 3A and 3B of the Appellate Jurisdiction Act had expanded the Rule 5(2)(b) twin principles into four considerations, including justice, fairness and hardship. The Court rejected this, holding that those provisions are general guiding principles only and that the twin principles - arguability and nugatory-ness - remain the governing test. It accepted the appeal was arguable on the question whether the applicants' title could lawfully be revoked by gazette notice, but found the nugatory limb unsatisfied: the Eastern Bypass slip road across the suit property had been opened to the public, and success on appeal could be remedied by an order to vacate and compensate for loss of user. The Court dismissed the motion and ordered that costs shall be in the appeal.

Key legal issues

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01

Whether the twin principles under Rule 5(2)(b) have expanded into four considerations

Holding

They have not; Article 159 and Sections 3A and 3B provide general guiding principles which the Court may bear in mind, but the test remains the twin principles of arguability and nugatory-ness

Reasoning

The Court held that the constitutional and statutory provisions supply general guidance in the exercise of judicial authority and may inform the discretion in appropriate cases, but they do not create new jurisdictional thresholds. The discretion under Rule 5(2)(b) remains anchored in the two established limbs which the Court has developed over the years.

p. 3
02

Whether the intended appeal was arguable

Holding

Yes; a single arguable point sufficed - whether the applicants' title could be revoked by gazette notice following a working group recommendation

Reasoning

The Court identified one sufficient arguable point: whether the applicants' title to the suit property could lawfully be revoked by a gazette notice issued by the Senior Registrar of Titles preceded by a working group recommendation, and whether the title was unlawfully acquired. The Court was careful not to make definitive findings of fact or law to avoid prejudging the main appeal.

p. 4
03

Whether the intended appeal would be rendered nugatory absent an injunction

Holding

No; the road had been opened to the public and, if the appeal succeeded, the applicants could be restored to the property and compensated

Reasoning

On the Court's own assessment, the road across the suit property, though incomplete, had been opened to motorized and pedestrian traffic. Balancing the rival interests, the Court found ongoing construction would not render a successful appeal nugatory, since the respondents could be ordered to vacate and compensate the applicants for loss of user.

p. 4

Legal principles established

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  • Rule 5(2)(b) confers an original discretionary jurisdiction on the Court of Appeal governed by two considerations only: an arguable appeal and that the appeal would be rendered nugatory absent relief; Article 159 and Sections 3A and 3B of the Appellate Jurisdiction Act are general guiding principles that do not expand the twin principles.
  • An arguable appeal is not one that must succeed; a single arguable point suffices for relief under Rule 5(2)(b).
  • An applicant must satisfy both twin principles; failing either, the application fails.

Court orders

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  1. 1.The motion dated 11th April 2012 seeking an injunction pending the intended appeal is dismissed
  2. 2.Costs shall be in the appeal

Authorities

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Legislation

  • Constitution of KenyaArticle 159
  • Constitution of KenyaArticle 40(1) and (3)
  • Constitution of KenyaArticle 47
  • Appellate Jurisdiction ActSections 3A and 3B
  • Court of Appeal RulesRule 5(2)(b)

Cases cited (9)

  • African Safari Club V. Safe Rentals
    Civil Application No. 53 of 2010
  • Githunguri V. Jimba Credit Ltd
    [1985] KLR 838
  • Olivier & Another V. Buttigieg
    [1966] 2 AII ER 459
  • Commissioner of Lands & Another V. Coastal Aquaculture Ltd
    [1997] KLR (E & L) 1 page 264
  • A. Kaderbhai & Another V. The Commissioner of Lands
    (1926 – 30) 12 KLR 12
  • Tropical Institute of Community Health & Development & 8 others V. Paramount Investments Ltd
    Civil Application No. Nai. 316/2004
  • Reliance Bank Ltd V. Norlake Investments Ltd
    [2002] 1 E.A. 227
  • Mitchell V. DPP & Another
    [1986] LRC 127
  • Oraro & Rachier Advocates V. Cooperative Bank of Kenya
    [1999] 1 EA 236
On appeal from
High Court of Kenya at Nairobi
Nairobi Petition No. 154 of 2011
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules; Sections 3A and 3B of the Appellate Jurisdiction Act (intended appeal from High Court)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (25)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Isaac Gathungu Wanjohi & another v Attorney General & 6 others [2013] KECA 495 (KLR)", Case Analysis (2013). Civil Application No. NAI 101 of 2012 (UR 79/2012). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2013/495/eng@2013-07-05

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