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Court of AppealAllowedCivil Application No. NAI 120 of 2014 (UR 98/2014)

James Mukuria Njoroge v Joseph Muraya Gachuhi & 2 others [2014] KECA 147 (KLR)

Court of Appeal
18 December 2014
1,290 words in judgment
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The bottom line

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The Court of Appeal halted all activity on a disputed Nairobi plot until an appeal is decided, protecting the buyer's structures and possession.

What this practically means

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Executive summary

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This was an application under Rule 5(2)(b) of the Court of Appeal Rules for an injunction pending the hearing of an intended appeal against a ruling of Nyamweya, J. delivered on 19th May 2014 in E.L.C No. 462 of 2012, dismissing the applicant's application for a temporary injunction. The applicant, administrator of the estate of the late Njoroge Thairu, claimed his late father was sold Plot No.173 on LR 133330/592 by Thome Farmers No.5 Ltd, took possession and made payments, only for the plot to be transferred by Joreth Ltd to the 1st respondent on 23rd April 2012. The High Court found he had not established a prima facie case because the 1st respondent held a better title. Before the Court of Appeal, the applicant argued the transfer was invalid as it was signed by James Njenga Karume, a director said to have died on 24th February 2010, and that Joreth Ltd and Thome Farmers No.5 Ltd were the same entity, occasioning double registration. The respondents maintained the entities were separate and the transfer was valid. Applying the settled two-limb test for Rule 5(2)(b) applications - an arguable appeal and the nugatory principle - the court found more than one arguable ground and held that the applicant's structures might be demolished and the land's nature altered or disposed of, rendering the appeal nugatory. The court allowed the application, issued an injunction until the intended appeal is determined, and ordered costs of the application to be costs in the intended appeal.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the intended appeal is arguable
  2. 2.Whether, if the injunction is not granted and the appeal succeeds, the appeal will be rendered nugatory

Key legal issues

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01

Whether the intended appeal raised arguable grounds

Holding

More than one arguable ground was made out, including whether Thome Farmers No.5 Ltd was the same as Joreth Ltd and whether a transfer signed by a director said to have died before the transfer date was valid.

Reasoning

The court identified two bona fide triable questions: the identity of and relationship between Thome Farmers No.5 Ltd and Joreth Ltd, and the validity of a transfer dated 23rd April 2012 signed by James Njenga Karume, a director said to have died on 24th February 2010. These questions warranted full argument on appeal.

p. 2
02

Whether the appeal would be rendered nugatory absent an injunction

Holding

The nugatory test was satisfied because the 1st respondent might demolish the applicant's structures, alter the land's physical nature or dispose of it.

Reasoning

Although the land itself would remain, the court found it probable that the 1st respondent would demolish the structures including a garage erected by the applicant, or put the land to uses altering its physical nature, or dispose of it. Such irreversible changes justified injunctive relief pending appeal, as damages would not adequately compensate.

p. 3

Legal principles established

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  • On a Rule 5(2)(b) application the applicant must satisfy the court that the appeal is arguable and that, if the order is not granted and the appeal succeeds, the appeal will be rendered nugatory.
  • It is sufficient on a Rule 5(2)(b) application if a single bona fide arguable ground is raised; the appeal need not be one that must succeed.
  • Whether an appeal will be rendered nugatory is a question peculiar to the facts of each individual case.

Court orders

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  1. 1.An injunction issued restraining the 1st and 2nd respondents from cultivating or interfering with the applicant's possession of LR 133330/592 until the intended appeal is heard and determined or further orders of the court issue
  2. 2.Costs of the application to be costs in the intended appeal

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

majority

Wrote the judgment

Philomena Mbete Mwilu
P. M. MwiluJA
Currently serving
majority

Wrote the judgment

On appeal from
High Court of Kenya at Nairobi
E.L.C No. 462 of 2012
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules (with Rules 41 and 47)

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

In determining an application such as this brought under Rule 5(2) (b), it has long been established and held that the applicant needs to satisfy the Court on two conditions, namely that he/she has an arguable appeal and that if the sought order is not granted and eventually appeal is successful, it shall be rendered nugatory.
p. 2Rule 5(2)(b) two-condition test
It is therefore warranted that an injunction do issue, and accordingly we issue the same until the intended appeal herein is heard and determined or further orders of the court issue.
p. 3Final orders - injunction pending appeal
We order that the costs of this application be costs in the intended appeal.
p. 3Costs

Issues in the judgment

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minor

The judgment renders the parcel number inconsistently, at one point 'LR 133330/592' and elsewhere 'L.R. 13330/592', an internal discrepancy in the description of the suit property.

minor

The company name is inconsistently spelled as 'Joreth Ltd' and 'Jeroth Ltd' within the judgment.

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, "James Mukuria Njoroge v Joseph Muraya Gachuhi & 2 others [2014] KECA 147 (KLR)", Case Analysis (2014). Civil Application No. NAI 120 of 2014 (UR 98/2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/147/eng@2014-12-18

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