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Court of AppealDismissedCivil Application No. NAI. 210 of 2015· [2016] KECA 210 (KLR)

Mohamed Omar (Suing as Secretary and on behalf of all members, Nasib Farmers Group) ..……….…..... APPLICANT AND Ahmed Abdi Tatu, Hussein Dagane, Sobow Adbiali, Ibrahim Abdiali, Ahmed Mussein Afey, Abdikadir Adan Hussein , Iftin Ali & Habiba Hire (Civil Application 210 of 2015) (Civ) [2016] KECA 210 (KLR)

Court of Appeal
5 August 2016
EGE. M. GithinjiFSF. SichaleSKS. ole Kantai
1,453 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Court of Appeal refused to protect disputed farmland because the group couldn't clearly identify the exact property it claimed.

What this practically means

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Executive summary

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This was an application under Rule 5(2)(b) of the Court of Appeal Rules for an injunction restraining eight respondents from entering, using or constructing on Nasib Farm, a parcel the applicant claimed on behalf of the Nasib Farmers Group, pending the hearing of an intended appeal against a ruling of the High Court (Gitumbi, J.) dated 12th June 2015 in H.E.L.C No. 640 of 2014. The High Court had dismissed a similar interlocutory application on the ground that the suit property had not been clearly identified. The applicant contended that the Group was allocated the land by the County Council of Tana River and had been in possession since 1972, while the respondents maintained that the parcels they occupied were in Garissa County and distinct from the land claimed. The Court of Appeal restated the settled twin principles governing Rule 5(2)(b) applications, citing Patrick Mweu Musimba v Richard N. Kalembe Ndile and Eric Makokha v Lawrence Sagini. It found that it faced the same dilemma as the High Court: the actual description and location of the suit property were uncertain, the allotment letter did not set out the description or location of the allocated land, and ownership remained contested. Concluding that the applicant had not satisfied the first limb of arguability, the court declined to consider the nugatory limb and dismissed the application with costs on 5th August 2016. The decision binds subordinate courts on the requirement that both limbs of the Rule 5(2)(b) test must be established.

Key legal issues

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01

Test for injunction pending appeal under Rule 5(2)(b)

Holding

The applicant must establish both an arguable appeal and that the appeal would be rendered nugatory absent the order; failing the first limb disposes of the application

Reasoning

The court restated the settled twin principles from Patrick Mweu Musimba v Richard N. Kalembe Ndile and the equitable maxim from Eric Makokha v Lawrence Sagini. It then examined the arguability limb and found the description and location of the suit property uncertain, the allotment letter failing to remedy the defect, and ownership contested. Having failed the arguability limb, it declined to consider the nugatory limb.

p. 3
02

Arguability where the suit property is not clearly identified

Holding

An appeal raising an unclear identification of the suit property is not arguable for purposes of an injunction under Rule 5(2)(b)

Reasoning

The court found itself faced with the same dilemma as the High Court: the actual description of Nasib Farm was unclear, its location uncertain between Tana River County and Garissa County, and the allotment letter set out neither the description nor the location of the property. Ownership also remained contested between the Group and the respondents.

p. 3

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 would be rendered nugatory if the order sought is not granted

Court orders

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  1. 1.The application under Rule 5(2)(b) was dismissed with costs

Authorities

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Legislation

  • Court of Appeal RulesRule 5(2)(b)

Cases cited (2)

  • Patrick Mweu Musimba –vs- Richard N. Kalembe Ndile & 3 others
    [2013] eKLR
  • Eric Makokha & 4 Others –vs- Lawrence Sagini & 2 Others
    [1994] eKLR
On appeal from
High Court of Kenya at Nairobi
H.E.L.C No. 640 of 2014
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, "Mohamed Omar (Suing as Secretary and on behalf of all members, Nasib Farmers Group) ..……….…..... APPLICANT AND Ahmed Abdi Tatu, Hussein Dagane, Sobow Adbiali, Ibrahim Abdiali, Ahmed Mussein Afey, Abdikadir Adan Hussein , Iftin Ali & Habiba Hire (Civil Application 210 of 2015)  (Civ) [2016] KECA 210 (KLR)", Case Analysis (2016). Civil Application No. NAI. 210 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/210/eng@2016-08-05

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