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Court of AppealAllowedCivil Application No. 281 of 2014 (UR 209/2014)· [2015] KECA 897 (KLR)

Jim Wachira Kabiru v Susan Wangui Karanja & 2 others [2015] KECA 897 (KLR)

Court of Appeal
13 March 2015
Philomena Mbete MwiluP.M. MwiluPKP.O. KiageJMJ. Mohammed
1,971 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal froze land transfers tied to a suspicious 2010 'transfer' signed by a man who died in 1996, protecting the property pending appeal.

What this practically means

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Executive summary

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This was an application under Rules 1(2) and 5(2)(b) of the Court of Appeal Rules for injunction pending the lodging, hearing and determination of an intended appeal against a ruling of Waithaka, J. of the High Court at Nakuru in E.L.C. Case No. 441 of 2013 delivered on 19th September 2014. The applicant, administrator of the estate of Joseph Wachira Kabiro (who died on 25th April 1996), sought to restrain the respondents from alienating Land Reference No. 3777/279/116 and to restrain the Registrar of Titles from registering adverse documents. The application was anchored on a transfer dated 29th December 2010 purportedly executed by the deceased some fourteen years after his death, and on fraud and forgery allegations against the 1st respondent, the subject of criminal proceedings. The 2nd respondent claimed to be an innocent purchaser for value from the 1st respondent. Applying the settled twin principles for relief under Rule 5(2)(b) - an arguable appeal and susceptibility of the appeal to being rendered nugatory - the court held both limbs satisfied: the challenge to posthumously executed documents and the forgery allegations were plainly arguable, and the risk of alienation would take the property beyond the applicant's reach, reducing the appeal to a mere academic exercise. The court granted the application in terms of prayers 1 and 2, directed that the intended appeal be filed within sixty days failing which the orders would lapse, and ordered that costs be in the intended appeal. The ruling does not disturb the High Court's decision; it preserves the status quo pending appeal.

Key legal issues

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01

Arguability of the intended appeal

Holding

The intended appeal was arguable; a challenge to transfer documents purportedly executed by a deceased person after his death, coupled with allegations of fraud and forgery, is not frivolous.

Reasoning

The court applied the settled Rule 5(2)(b) test that the appeal need only raise a bona fide point requiring answer on appeal. It found the grievances in the memorandum of appeal substantial: a transfer dated 2010 purportedly executed by a person who died in 1996, and fraud and forgery allegations that led to the 1st respondent's arrest and prosecution, could not be dismissed as idle.

p. 4
02

Whether the appeal would be rendered nugatory

Holding

The court was satisfied that the property could be sold, transferred or otherwise dealt with to the applicant's detriment, taking it beyond his reach and rendering the appeal an academic exercise.

Reasoning

The applicant's apprehension of alienation was held valid and neither remote nor far-fetched, given the manner in which the transfer documents were allegedly executed. The court held that a court of law and equity should preserve the substratum of its proceedings, so the property should be preserved inviolate and the status quo maintained.

p. 4

Legal principles established

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  • An applicant under Rule 5(2)(b) must satisfy both an arguable appeal and that the appeal would be rendered nugatory absent relief.
  • A single bona fide arguable point suffices; the appeal need not necessarily succeed.

Court orders

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  1. 1.Injunction granted in terms of prayers 1 and 2 of the motion, restraining the 1st and 2nd respondents from selling, charging, transferring, leasing or otherwise alienating or dealing with Land Reference No. 3777/279/116 pending appeal, and restraining the 3rd respondent from registering any adverse documents
  2. 2.The intended appeal to be filed within sixty (60) days of the date of the ruling, failing which the orders will automatically lapse
  3. 3.Costs shall be in the intended appeal

Authorities

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Legislation

  • Court of Appeal RulesRule 1(2)
  • Court of Appeal RulesRule 5(2)(b)
  • Land Registration Act 2012Sections 23, 24, 25
  • Land Registration Act 2012Section 26(1)
  • Land Registration Act 2012Section 80(2)

Cases cited (3)

  • Stanley Kangethe Kinyanjui v Tonny Ketter & 2 Others
    [2013] e KLR
  • David Morton Silverstein v Atsango Chesoni
    [2002] 1 KLR 867
  • Reliance Bank Ltd v Norlane Investments Ltd
    [2002] 1 EA 227
On appeal from
High Court of Kenya at Nakuru
E.L.C. Case No. 441 of 2013
Jurisdiction invoked
Rules 1(2) and 5(2)(b) of the Court of Appeal Rules (interim relief pending appeal)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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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, "Jim Wachira Kabiru v Susan Wangui Karanja & 2 others [2015] KECA 897 (KLR)", Case Analysis (2015). Civil Application No. 281 of 2014 (UR 209/2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/897/eng@2015-03-13

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