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Court of AppealAllowedCivil Application No. 56 of 2017 (UR 38/2017)· [2017] KECA 165 (KLR)

Lawrence Musango Oketch & 2 others v Karen Enterprises Limited [2017] KECA 165 (KLR)

Court of Appeal
27 July 2017
EGE. M. GithinjiHOHannah OkwenguAMA. K. Murgor
1,190 words in judgment
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The bottom line

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The Court of Appeal stopped an eviction from Kisumu land, holding the occupants' appeal raised arguable issues and would be meaningless if they were removed first.

What this practically means

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Executive summary

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The applicants, aggrieved by a High Court judgment ordering them to vacate land parcel IR 67384 LR. No.16345/Kisumu Municipality within 30 days and restraining interference with the respondent's possession, moved the Court of Appeal under rule 5(2)(b) for interim injunction and stay of the High Court proceedings and judgment pending an intended appeal. They claimed their families had occupied the suit property for 150 years and that the respondent's lease was irregularly, fraudulently and unconstitutionally obtained, the land having been compulsorily acquired for public purposes. They also contended the High Court lacked jurisdiction to hear land matters. The respondent, through its advocate's replying affidavit, opposed, arguing the appeal was frivolous, that the High Court had jurisdiction under the constitutional transition provisions, and that the applicants came with unclean hands. The Court restated the twin rule 5(2)(b) principles: an arguable appeal and that the appeal would be rendered nugatory absent relief, as applied in Harshmukrlal Virchand Shah & 2 Others v Investments and Morgages Bank. It found grounds one and two on jurisdiction arguable, holding jurisdiction is an issue of law raisable at any stage even if not raised below, and that the compulsory acquisition issue was also arguable. On nugatory aspect, the subject matter being the suit property, eviction would render the appeal nugatory. The Court allowed the motion, granting interim injunction and stay, conditioned on filing and serving the record of appeal within 60 days and the appeal being heard within twelve months. Costs were awarded as costs in the appeal.

Key legal issues

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01

Whether the intended appeal raises arguable issues

Holding

Yes. The challenge to the High Court's jurisdiction over the land dispute and the alleged irregular compulsory acquisition and acquisition of title to the suit property were arguable issues fit for canvass on appeal.

Reasoning

The Court perused the draft memorandum of appeal with six grounds, identifying grounds 1 and 2 as raising the jurisdiction of the High Court to hear land matters. It held jurisdiction is a question of law raisable at any stage, and the extensive submissions of both counsel confirmed the issue was arguable. The question of compulsory acquisition and irregular acquisition of the suit property was also arguable.

p. 2
02

Whether the appeal would be rendered nugatory if the orders sought are not granted

Holding

Yes. The subject matter of the appeal is the suit property, and the applicants faced eviction and the risk of the property being disposed of, rendering the appeal nugatory.

Reasoning

The High Court had ordered the applicants to vacate the suit property within 30 days and restrained further interference with the respondent's possession. Absent a stay and interim injunction, the applicants would lose occupation and the property risked disposal, defeating the appeal before it could be heard.

p. 2

Legal principles established

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  • Jurisdiction is an issue of law that may be raised at any stage of proceedings, even where it was not raised before the High Court.
  • An application under rule 5(2)(b) succeeds where the applicant demonstrates an arguable appeal and that the appeal would be rendered nugatory if the stay or injunction sought is not granted.

Court orders

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  1. 1.Order of interim injunction restraining the respondent from encroaching, trespassing, disposing off, selling, occupying or evicting the applicants from the suit property pending appeal
  2. 2.Stay of the judgment of the High Court pending the hearing and determination of the appeal
  3. 3.Applicants to file and serve the record of appeal within 60 days from the date of the order
  4. 4.Appeal to be listed for hearing within twelve months from the date of filing of the record of appeal

Authorities

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Legislation

  • Constitution of Kenyatransition provisions
  • Court of Appeal RulesRule 5(2)(b)

Cases cited (3)

  • Charles Kirathe Kiarie and 2 Others v the Administrators of the Estate of John Wallace Mathare (deceased) and 3 Others
    (2015) eKLR, Supreme Court application No. 1/2014
  • King Motors Limited v Shell & BP (Malindi) Kenya Limited
    (2005) eKLR
  • Harshmukrlal Virchand Shah & 2 Others v Investments and Morgages Bank
    Civil Application No. 94 of 2014 (Ur 77 of 2014)
On appeal from
High Court of Kenya at Kisumu
Civil Suit No. 59 of 2005
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, "Lawrence Musango Oketch & 2 others v Karen Enterprises Limited [2017] KECA 165 (KLR)", Case Analysis (2017). Civil Application No. 56 of 2017 (UR 38/2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/165/eng@2017-07-27

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