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Court of AppealOtherCivil Application No. NAI. 36 of 2016

Compar Investments Limited v National Land Commission & 3 others [2016] KECA 437 (KLR)

Court of Appeal
17 June 2016
3,166 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 blocked the National Land Commission from revoking a Kshs.1 billion property title until an appeal challenging that decision is heard.

What this practically means

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Executive summary

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This is a single-judgment ruling of the Court of Appeal at Nairobi (Githinji, Visram and Kantai, JJ.A.) on a Notice of Motion dated 12th February 2016 brought by Compar Investments Limited under Rule 5(2)(b) of the Court of Appeal Rules, seeking stay of proceedings and conservatory orders restraining the National Land Commission, the Chief Land Registrar and the Kenya Urban Roads Board from revoking the applicant's title over LR No. 209/12686 Nairobi or demolishing developments on it, pending an intended appeal against the judgment of Lenaola, J. delivered on 5th February 2016 in ELC Petition No. 311 of 2014. The applicant argued the NLC revoked its title without a fair hearing, without reasons and without a written decision, and that developments worth about Kshs.1 billion would be destroyed. The respondents conceded arguability but contended compensation in damages would suffice. The court restated the settled two-limb Rule 5(2)(b) test: arguability and nugatory effect, both of which must be satisfied, one arguable point sufficing. It found the intended appeal arguable and held the nugatory limb satisfied, holding that developments worth a colossal sum should be preserved and that the NLC should not risk public funds by demolishing and later compensating. The court granted the stay and conservatory relief but conditioned it: the applicant to file the intended appeal within 30 days, failing which the application stands dismissed with costs to the respondents; the appeal to be heard on priority; costs of the motion to abide the appeal.

Key legal issues

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01

Whether the intended appeal was arguable

Holding

The court found the intended appeal arguable, noting the respondents themselves conceded arguability, particularly on whether the NLC breached the applicant's right to a fair hearing and issued revocation without reasons.

Reasoning

The court reviewed the draft memorandum of appeal and identified grounds concerning jurisdiction of the High Court judge, absence of a written decision by the NLC, and absence of written reasons for the revocation recommendation. It held that whether the NLC's action breached the right to fair hearing by deciding without a hearing and without reasons was obviously arguable, and the respondents conceded as much.

p. 4
02

Whether the intended appeal would be rendered nugatory absent stay

Holding

The court held the second limb satisfied: the developments on the land, worth a colossal sum (about Kshs.1 billion), should be preserved pending appeal, and a constitutional commission should not risk public funds by demolishing then potentially compensating.

Reasoning

Both sides agreed substantial developments existed, uncontested to be worth Kshs.600 million at the petition stage and possibly Kshs.1 billion. Respondents argued compensation in damages was adequate, but the court held that weighing the claims of both sides, the balance of convenience lay in preserving the developments, and that the NLC should not risk public funds in that manner.

p. 5

Legal principles established

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  • To obtain stay under Rule 5(2)(b), an applicant must demonstrate both that the appeal is arguable and that it would be rendered nugatory if stay is not granted; satisfying only one limb is insufficient.
  • A single arguable point suffices to establish the arguability limb of the Rule 5(2)(b) test.
  • In assessing the nugatory limb, the court must weigh the conflicting claims of both sides and consider the particular circumstances of each case.

Court orders

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  1. 1.Conservatory orders restraining the respondents from revoking or cancelling the applicant's title over L.R. No. 209/12686 Nairobi and from interfering with the property pending the intended appeal
  2. 2.Stay of proceedings of the respondents in implementing the 1st respondent's determination to revoke the applicant's title pending the intended appeal
  3. 3.The applicant to file the intended appeal within 30 days, in default the application to stand dismissed with costs to the respondents
  4. 4.The appeal, when filed, to be given a hearing date on priority basis
  5. 5.Costs of the Motion to abide the intended appeal
On appeal from
High Court of Kenya at Nairobi
ELC Petition No. 311 of 2014
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules and provisions of the Appellate Jurisdiction Act

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, "Compar Investments Limited v National Land Commission & 3 others [2016] KECA 437 (KLR)", Case Analysis (2016). Civil Application No. NAI. 36 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/437/eng@2016-06-17

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