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Court of AppealDismissedCivil Application No. 7 of 2015· [2015] KECA 580 (KLR)

Chembe Katana Changi v Minister for Lands & Settlement 4 others [2015] KECA 580 (KLR)

Court of Appeal
3 July 2015
2,202 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to freeze a land decision, confirming that even unopposed applications must still prove their case.

What this practically means

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Executive summary

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This was an unopposed application under Rules 5(2)(b), 42(1)(2) and 49(1) of the Court of Appeal Rules seeking stay of execution of the Minister for Lands' decision and an injunction restraining the respondents from dealing with Plots 803 and 891 Mikahani/Mawemabomu/Chonyi Adjudication Section, pending an intended appeal against the judgment of Meoli, J. in Malindi High Court Civil Suit No. 29 of 2006 dismissing the applicant's suit to nullify the Minister's award to the 3rd respondent. The dispute stemmed from adjudication proceedings under the Land Adjudication Act in which the applicant prevailed before the Committee, the Board and the Land Adjudication Officer, but lost before the Minister on an appeal mounted by the 3rd respondent, who had not participated in the earlier phases. The Court restated that Rule 5(2)(b) jurisdiction is original, independent and discretionary, and that an unopposed application must still satisfy both the arguability and nugatory-ness limbs. Although the locus standi of the 3rd respondent was arguably a live issue, the Court doubted it could ground an arguable appeal because Section 29 of the Act and regulation 4(1) appear to permit even non-participants to appeal to the Minister, whose decision is final, with judicial review the only further recourse. The application was accordingly dismissed with no order as to costs.

Key legal issues

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01

Nature of the Court's jurisdiction under Rule 5(2)(b)

Holding

The jurisdiction under Rule 5(2)(b) is original, independent and discretionary, empowering the Court to preserve the subject matter of an intended appeal.

Reasoning

The Court, citing Githunguri v Jimba Credit Corporation and Equity Bank v West Link, reaffirmed that Rule 5(2)(b) confers an original, independent and discretionary jurisdiction to entertain interlocutory applications for preservation of the subject matter of an appeal or intended appeal. This jurisdiction is exercised on settled common law conditions.

p. 3
02

Whether lack of opposition dispenses with the Rule 5(2)(b) threshold

Holding

No; the applicant must satisfy the arguability and nugatory-ness limbs even where the application is unopposed.

Reasoning

The Court rejected counsel's submission that unopposed applications obtain orders automatically. The Court is beholden to satisfy itself that the threshold under Rule 5(2)(b) is met regardless of opposition, since both limbs must be demonstrated before relief can issue.

p. 3
03

Whether the locus standi point rendered the intended appeal arguable

Holding

The Court doubted that the locus standi question could make the appeal arguable, given Section 29 of the Land Adjudication Act and regulation 4(1), which appear to allow even a person not involved in earlier proceedings to appeal to the Minister, whose decision is final.

Reasoning

Section 29 makes the Minister's decision final, with recourse beyond it only by judicial review, which was not the route taken. Section 29 and regulation 4(1) suggest a non-participant may appeal to the Minister. The Court also noted the first, second, fourth and fifth respondents had been removed from the proceedings, questioning the efficacy of any judgment against the 3rd respondent alone. Hence neither limb of Rule 5(2)(b) was satisfied.

p. 4

Legal principles established

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  • The absence of opposition to an application under Rule 5(2)(b) does not dispense with the applicant's obligation to satisfy both limbs of the test - arguability and nugatory-ness.
  • An appeal is arguable if it raises a bona fide issue worthy of consideration; it need not be one that must succeed.
  • Under Section 29 of the Land Adjudication Act, an appeal to the Minister is the last line of recourse and the Minister's decision is final; beyond it the courts have jurisdiction only on judicial review.

Court orders

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  1. 1.The application dated 6th March 2015 seeking stay of execution and injunction pending appeal is dismissed
  2. 2.No order as to costs

Authorities

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Legislation

  • Land Adjudication ActSection 29
  • Land Adjudication Actregulation 4(1)
  • Government Proceedings ActSection 16
  • Court of Appeal RulesRule 5(2)(b)
  • Court of Appeal RulesRule 42(1)(2)
  • Court of Appeal RulesRule 49(1)

Cases cited (6)

  • Githunguri v. Jimba Credit Corporation Ltd No. (2)
    [1988] KLR 88
  • Equity Bank Ltd v. West Link
    NBO Civil Application No. 78 of 2011 (UR)
  • Kenya Tea Growers Association & another v. Kenya Planters Agricultural Workers Union
    Civil Application No. NAI 72 of 2001 (UR)
  • Kwench Limited v. Kwench Limited and 2 others
    [2014] eKLR
  • Nicholas Njeru v. A-G & 8 Others
    [2013] eKLR
  • Republic v. Kenya Anti-Corruption Commission & 2 others
    [2009] KLR 31
On appeal from
High Court of Kenya at Malindi
Civil Suit No. 29 of 2006 (Civil Appeal Nos. 9 and 12 of 2002 referenced)
Jurisdiction invoked
Rules 5(2)(b), 42(1)(2) and 49(1) 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, "Chembe Katana Changi v Minister for Lands & Settlement 4 others [2015] KECA 580 (KLR)", Case Analysis (2015). Civil Application No. 7 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/580/eng@2015-07-03

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