S M M Alias G S K Alias S S M v C A. K. M Alias C A K M [2014] KECA 723 (KLR)
The bottom line
#Kenya's Court of Appeal protected a woman's access to disputed property pending her appeal, but only if she files the appeal record within 90 days.
What this practically means
#Executive summary
#Key legal issues
#Whether the intended appeal is arguable
The intended appeal is arguable, at least on the question whether the trial judge was right to hold that no partnership existed between the parties; arguability does not require that the appeal necessarily succeed.
The parties had a long-term relationship of about 16 years. The trial judge found as a fact that the relationship was neither a marriage nor a partnership. The applicant contended those findings were against the weight of evidence. The court declined to comment further, holding the matter was for the substantive appeal, but found the partnership question not frivolous.
Whether the intended appeal would be rendered nugatory without the orders sought
The appeal would be rendered nugatory because the applicant claims a proprietary interest in the properties, her personal effects and documents are held there, and the properties had no title against which she could lodge a caution or caveat, exposing them to disposal.
The applicant resided in the Katelembo House until her eviction after judgment. She claimed a proprietary interest and her personal effects and documents were in the house. Title documents were in the process of being issued; absent a title she could not lodge a caution or caveat, so the respondent might dispose of the property, and the applicant and her daughter would suffer immensely without redress.
Legal principles established
#- An applicant under Rule 5(2)(b) must satisfy the court both that the intended appeal is arguable and that it will be rendered nugatory if the orders are not granted.
- An arguable appeal is not one that will necessarily succeed.
Court orders
#- 1.Mandatory injunction restraining the respondent from blocking the applicant from accessing the suit plots in Katelembo Athiani Mavuti Farmers and Ranching Cooperative Society Limited
- 2.Injunction restraining the respondent from disposing of or transferring the said plots pending the hearing and determination of the intended appeal
- 3.The applicant to lodge the record of appeal within 90 days from the date of delivery of the ruling failing which the order shall automatically lapse
- 4.Costs of the application to abide the outcome of the appeal
- On appeal from
- High Court of Kenya at Machakos
- Civil Suit No. 58 of 2009
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "S M M Alias G S K Alias S S M v C A. K. M Alias C A K M [2014] KECA 723 (KLR)", Case Analysis (2014). Civil Application No. NAI 292 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/723/eng@2014-03-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.