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Court of AppealPartially AllowedCivil Application No. 59 of 2016 (UR.42/16)· [2016] KECA 13 (KLR)

The County Government Of Bomet v Moi University & 2 others [2016] KECA 13 (KLR)

Court of Appeal of Kenya
8 December 2016
3,923 words in judgment
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The bottom line

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Kenya's Court of Appeal blocked Moi University from demolishing Bomet County's stadium pending appeal, stressing that public bodies must not waste public money.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal (Waki, Nambuye and Kiage, JJ.A.) on a motion by the County Government of Bomet under Rule 5(2)(b) seeking an injunction pending an intended appeal from the judgment of Muya, J in Bomet High Court Petition No. 3 of 2016, which had awarded land claimed for a public stadium to Moi University. The application was opposed by Moi University and by elected leaders from Bomet County who had been interested parties below. Applying the settled twin principles for interim relief - an arguable appeal and the appeal being rendered nugatory - the Court found the first limb satisfied: a single bona fide arguable ground suffices, and proposed grounds on the role of the National Land Commission, the burden of proof over public land, Section 12(2) of the Land Act, 2012, and the County Government's trust over land formerly vested in local authorities raised issues worthy of argument. On the nugatory limb, the Court noted the 1st respondent's conspicuous silence on whether it would demolish the near-complete multi-million-shilling public stadium, rendering the applicant's apprehension uncontroverted. It further invoked the Supreme Court's third public interest condition in Gatirau Peter Munya, holding that public bodies must use public money prudently under Article 201(d) of the Constitution and cannot adopt a 'demolish and pay' attitude, nor rush into contracts for the very acts subject to injunctive pleas. The Court granted the injunction in terms of prayer 3, clarifying it covers parcels 307 and 308 in Bomet Town, with costs in the intended appeal and directions for priority listing. The ruling does not disturb the High Court's decision; the intended appeal remains to be heard.

Key legal issues

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01

Whether the intended appeal was arguable

Holding

The proposed grounds on the role of the National Land Commission, burden of proof, Section 12(2) of the Land Act and county trust over public land raised bona fide issues; a single bona fide ground suffices.

Reasoning

The Court reviewed proposed grounds (d) to (h) attacking the High Court judgment on the allocation of public land. It held that the threshold is low: the applicant need show only arguability, not preponderant chances of success. A solitary bona fide ground calling for an answer from the opposite party is enough. The respondents had not provided sufficient answers to dislodge the claim of arguability.

p. 5
02

Whether the appeal would be rendered nugatory without an injunction

Holding

The apprehension that the stadium would be demolished was uncontroverted on oath, and demolition of a near-complete public facility of great public utility, even if compensable, would render the appeal nugatory.

Reasoning

The Court noted the 1st respondent's conspicuous silence on whether it would demolish the stadium, rendering the applicant's averment uncontroverted. Although compensation was possible, demolition would deprive the people of Bomet of a facility of value, and the respondents' confidence in the Treasury's ability to pay was a bad attitude inconsistent with the constitutional command of prudent use of public money.

p. 6
03

Public interest as a third condition for interim relief

Holding

Proper husbandry of public resources supports the grant of the injunction, echoing the Supreme Court's third condition in the Munya case.

Reasoning

Applying Gatirau Peter Munya v Dickson Mwenda Kithinji, the Court found the public interest condition satisfied: two public projects competed, hundreds of millions of public funds had been invested in the stadium, and public bodies should not rush into contracts to do the very things subject to injunctive pleas and then claim that grant of the pleas would occasion them loss.

p. 7

Legal principles established

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  • An applicant under Rule 5(2)(b) must establish the twin principles of an arguable appeal and that the appeal will be rendered nugatory, and in appropriate cases a third public interest condition applies.
  • Public bodies must use public money prudently and cannot adopt an attitude of acting first and paying compensation later; this weighs in favour of interim relief in the public interest.

Court orders

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  1. 1.Injunction granted in terms of prayer 3 of the motion, restraining Moi University from occupying, interfering with, trespassing on, demolishing, dealing in, alienating or disposing of parcels No. 307 and 308 in Bomet Town on which the stadium under construction stands, pending the hearing and determination of the intended appeal
  2. 2.The record of appeal to be lodged within 30 days (if not already lodged) and listed for hearing on a priority basis
On appeal from
High Court of Kenya at Bomet
Petition No. 3 of 2016
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules - application for injunction pending an intended appeal

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, "The County Government Of Bomet v Moi University & 2 others [2016] KECA 13 (KLR)", Case Analysis (2016). Civil Application No. 59 of 2016 (UR.42/16). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/13/eng@2016-12-08

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