Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealAllowedCivil Application No. 50 of 2016 (UR 35 of 2016)· [2017] KECA 48 (KLR)

Loise Njeri & 9 others v Joseph Maina Kamau [2017] KECA 48 (KLR)

Court of Appeal of Kenya
5 March 2017
1,746 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

#

Kenya's Court of Appeal protected land buyers and occupants from eviction or sale pending appeal, provided they file the appeal within sixty days.

What this practically means

#

Executive summary

#
This is a ruling of the Court of Appeal at Nyeri (Waki, Nambuye and Kiage, JJA) on a notice of motion dated 26 July 2016 brought by nine applicants under rules 5(2)(b) and 42 of the Court of Appeal Rules, 2010. The applicants sought a stay of further proceedings in Nyeri ELC Case No. 423 of 2014 and an injunction restraining the respondent from evicting, selling or dealing with parcels Maragua/Ridge/259-269 pending an intended appeal against a ruling of the High Court (Waithaka, J) dated 26 May 2016 striking out their suit as res judicata. The applicants claimed occupation of the suit parcel since 1950 and argued the parcel they claim, Maragua/Ridge/39A, is distinct from the respondent's parcel Maragua/Ridge/50. The respondent countered that the parcels derive from an earlier suit, Nyeri HCCC No. 252 of 1983, in which eviction orders were obtained against three of the applicants, and that the intended appeal is neither arguable nor nugatory. Applying the settled twin principles from Multimedia University v Naituli and Stanley Kangethe Kinyanjui v Tony Ketter, the Court found a single bona fide arguable ground in the distinctness of parcel 39A and the reach of res judicata over six of the nine applicants, and held the risk of disposal of the subdivided parcels to third parties rendered the appeal potentially nugatory. The application was allowed in terms of prayers 2 and 4, conditional on filing the intended appeal within sixty days, with costs in the intended appeal.

Key legal issues

#
01

Whether the intended appeal was arguable

Holding

The Court found arguable grounds on whether Maragua/Ridge/39A exists distinctly from Maragua/Ridge/50 and whether res judicata binds the six applicants not party to the earlier suit.

Reasoning

The Court perused the draft memorandum of appeal and identified genuine issues: the existence on the ground of the parcel the applicants claim, distinct from the respondent's parcel, and whether the res judicata doctrine from the earlier HCCC No. 252 of 1983 binds applicants who were not initially party to those proceedings. It applied the principle that an arguable point need not succeed but need only invite a response from the opposite party.

p. 2
02

Whether the appeal would be rendered nugatory

Holding

The applicants' apprehension that the suit parcels might be disposed of to third parties during the pendency of the appeal, coupled with the respondent's insistence on executing the High Court judgment, could not be dismissed as unfounded.

Reasoning

The suit parcels had been subdivided into Maragua/Ridge/259-269 and there was a likelihood of disposal to third parties pending the intended appeal. Weighed against the respondent's insistence on executing the High Court judgment, the Court held this apprehension could not be wished away, satisfying the second limb of the rule 5(2)(b) test.

p. 3

Legal principles established

#
  • An applicant under rule 5(2)(b) must satisfy the twin principles of an arguable appeal and that the appeal would be rendered nugatory if interim orders are denied.
  • It is sufficient to raise a single bona fide arguable ground; an arguable appeal need not necessarily succeed.
  • The Court must not make definitive or final findings of fact or law on a rule 5(2)(b) application.
  • The term 'nugatory' means not only worthless, futile or invalid, but also trifling; reversibility and adequacy of damages are relevant.

Court orders

#
  1. 1.Application allowed in terms of prayers 2 and 4 thereof
  2. 2.Stay of further proceedings and injunction restraining the respondent from evicting, selling or dealing with parcels Maragua/Ridge/259-269 pending the intended appeal, granted on condition that the intended appeal be filed within sixty (60) days failing which the injunctive orders automatically lapse
  3. 3.Costs in the intended appeal

Authorities

#

Legislation

  • Court of Appeal Rules, 2010Rule 5(2)(b)
  • Court of Appeal Rules, 2010Rule 42
  • Court of Appeal Rules, 2010Rule 75

Cases cited (5)

  • Multimedia University & Another vs. Professor Gitile N. Naituli
    (2014) eKLR
  • Stanley Kangethe Kinyanjui v Tony Ketter & Others
    [2013] eKLR
  • Agnes Wambui Karingu versus Joreth Limited and Another
    [2011] eKLR
  • Duncan Nduracha versus Fuad M. Muhammed and 2 Others
    [2011] eKLR
  • John Gachie Gichimu and twenty others versus Mukua Tutuma & another
    [2010] eKLR
On appeal from
High Court of Kenya at Nyeri
Environment & Land Court Case No. 423 of 2014
Jurisdiction invoked
Rules 5(2)(b) and 42 of the Court of Appeal Rules, 2010

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Loise Njeri & 9 others v Joseph Maina Kamau [2017] KECA 48 (KLR)", Case Analysis (2017). Civil Application No. 50 of 2016 (UR 35 of 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/48/eng@2017-03-05

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