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Court of AppealPartially AllowedCivil Application No. 30 of 2013· [2014] KECA 825 (KLR)

Cecilia Kadzo Emmanuel v Miriam Chea Mungai [2014] KECA 825 (KLR)

Court of Appeal
6 February 2014
HOH. M. OkwenguASAsike-MakhandiaWilliam OukoW. Ouko
2,271 words in judgment
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The bottom line

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Kenya's Court of Appeal stopped construction and eviction on disputed Kilifi land, confirming one arguable ground is enough for interim relief.

What this practically means

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Executive summary

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The applicant, Cecilia Kadzo Emmanuel, widow of the late John M. Karisa, claimed continuous occupation since 1982 of Plot No. 490 at Mabirikani, Kilifi, allocated to her late husband by the defunct County Council of Kilifi. The respondent, Miriam Chea Mungai, asserted title to L.R. No. 5054/328, denied any nexus between the parcels, and began constructing a perimeter wall and a Kshs.45,000,000/- hostel, prompting the applicant to sue in Malindi E.L.C. No. 140 of 2013 and to seek an interim injunction. Angote, J. dismissed that application on 1st November 2013, holding it res judicata in light of earlier litigation between the parties, including Mombasa ELC No. 104 of 2012, which had been struck out. The applicant lodged a notice of appeal and then this application under Rule 5(2)(b) of the Court of Appeal Rules seeking stay of proceedings and injunctions pending appeal. Before the Court of Appeal (Okwengu, Makhandia and Ouko, JJ.A.), counsel pursued only the injunction. Applying the settled two-limb test that the intended appeal must be arguable and that, without the order sought, it would be rendered nugatory, the Court found one ground - that the Judge misapprehended res judicata - sufficient to establish arguability, and, given the demolition of part of the applicant's house and the risk of her permanent exclusion, concluded the nugatory limb was met. The Court allowed the application, granting an injunction for six months restraining construction, eviction or fencing pending the intended appeal, with costs in the intended appeal. The stay of proceedings prayer was treated as abandoned.

Key legal issues

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01

Whether the intended appeal was arguable

Holding

The Court found the appeal arguable on the single ground that the learned Judge misapprehended the doctrine of res judicata, a matter requiring ventilation at the substantive hearing

Reasoning

The Court reiterated the settled Rule 5(2)(b) two-limb test from Ishmael Kagunyi Thande v Housing Finance Company Limited. On the first limb, it perused the draft memorandum of appeal and found the grounds not frivolous. One ground, alleging erroneous application of res judicata, was sufficient because the parties held contrasting views on the issue, and even a single arguable issue meets the threshold.

p. 3
02

Whether the appeal would be rendered nugatory without an injunction

Holding

The Court held the appeal would be rendered nugatory because the respondent would complete the perimeter wall and develop the Kshs.45,000,000/- hostel, locking the applicant out of the suit premises

Reasoning

The applicant deponed that after dismissal of her injunction application, the respondent swiftly began constructing a perimeter wall, demolishing part of her house. The respondent did not seriously contest this and confirmed her intention to secure the premises for the hostel project. Completion would evict the applicant and her family and put the premises beyond her reach, rendering the appeal academic.

p. 4

Legal principles established

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  • To obtain an injunction or stay under Rule 5(2)(b), an applicant must show the appeal is arguable and that the appeal would be rendered nugatory if the order is not granted
  • A single arguable issue suffices to satisfy the arguability threshold under Rule 5(2)(b); a multiplicity of issues is not required

Court orders

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  1. 1.Pending the hearing and determination of the intended appeal, an injunction shall forthwith issue restraining the respondent from constructing a perimeter wall or a Kshs.45,000,000/- hostel and or evicting the applicant from the suit premises
  2. 2.The injunction shall last only for six (6) months from the date of the ruling
  3. 3.Costs shall be in the intended appeal

Authorities

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Legislation

  • Land Registration Actsection 26
  • Court of Appeal RulesRule 5(2)(b)

Cases cited (1)

  • Ishmael Kagunyi Thande v Housing Finance Company Limited
    Nai Civil Application No. 157 of 2006 (UR)
On appeal from
Environment and Land Court (High Court), Malindi
Malindi E.L.C. No. 140 of 2013
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules

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, "Cecilia Kadzo Emmanuel v Miriam Chea Mungai [2014] KECA 825 (KLR)", Case Analysis (2014). Civil Application No. 30 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/825/eng@2014-02-06

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