Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealPartially AllowedCivil Application (Kisumu) - not stated in judgment· [2017] KECA 246 (KLR)

George Otieno Gache & another v Judith Akinyi Bonyo & 5 others [2017] KECA 246 (KLR)

Court of Appeal of Kenya
5 October 2017
EGE. M. GithinjiHOHannah OkwenguJMJ. Mohammed
2,496 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

#

Kenya's Court of Appeal blocked any sale or development of disputed Kisumu land until the appeal is heard, but refused to evict those already living on it.

What this practically means

#

Executive summary

#
By a Notice of Motion dated 22nd September 2016, George Otieno Gache and Covenant Peace of Church sought an injunction restraining the four respondents from occupying L.R. No. 15155 Kanyakwar Kisumu and a stay of proceedings pending an intended appeal against a ruling of the ELC (Kibunja J, 12th November 2015) that struck out their plaint after upholding a preliminary objection, principally on the ground that the 1st applicant lacked capacity to sue for the 2nd applicant, which the respondents contended did not exist when the alleged 1991 allotment was made. Applying the settled twin principles under Rule 5(2)(b) of the Court of Appeal Rules, the Court found the intended appeal arguable: the issues of whether curable procedural defects justified summary dismissal and whether lack of representative capacity was fatal were bona fide, and a single bona fide issue suffices at this stage. On nugatory-ness, the respondents were in possession and could dispose of, develop or alter the character of the land, rendering a successful appeal academic and damages inadequate. However, because the respondents had already taken possession, an eviction-restraining order would cause confusion. The Court therefore allowed the motion only in part, restraining the respondents from parting with possession of, developing, or changing the character of the suit property pending the hearing of the appeal, the order to last a maximum of 12 months unless extended, and urged the applicants to prosecute their appeal. No costs order was made in the judgment.

Key legal issues

#
01

The twin principles governing Rule 5(2)(b) applications

Holding

The applicant must satisfy both the arguability limb and the nugatory limb to obtain relief

Reasoning

The Court restated the settled principles from Githunguri v Jimba Corporation Limited and Northwood Development Company Limited, adopting the formulation in Reliance Bank Ltd vs Norlake Investments Ltd and Emirates Airline Limited v Stephen Chase Kisaka that both limbs must co-exist before interim relief can issue under Rule 5(2)(b).

p. 3
02

Whether the applicants' intended appeal was arguable

Holding

It was arguable; the Court need not inquire into the merits or prospects of success at that stage

Reasoning

The Court found that the issues raised, including whether the ELC should have sustained rather than terminated the suit for curable procedural defects and whether the 1st applicant's lack of capacity was a fatal defect, were bona fide. At this stage the Court is not expected to inquire into merits; a single bona fide issue suffices.

p. 4
03

Whether the appeal would be rendered nugatory without interim relief

Holding

Yes; the respondents in possession could dispose of, develop or change the character of the suit land, rendering the appeal academic and damages inadequate

Reasoning

With the respondents in possession and the ELC interim orders vacated, nothing prevented them from alienating or developing the property. Should that happen, a successful appeal would be an academic exercise, the situation irreversible, and damages possibly inadequate.

p. 4

Legal principles established

#
  • For relief under Rule 5(2)(b), the applicant must demonstrate both an arguable appeal and that the appeal would be rendered nugatory; one limb alone is insufficient
  • An appeal is arguable if it is not frivolous; it need not be shown that the appeal will succeed
  • In assessing nugatory-ness the court considers whether what is sought to be stayed is reversible, or if not, whether damages will reasonably compensate the aggrieved party

Court orders

#
  1. 1.The respondents are restrained from parting with possession of the suit property pending the hearing of the appeal
  2. 2.The respondents are restrained from developing the suit property or in any way changing the character of the suit property pending the hearing of the appeal
  3. 3.The order will last for a maximum period of 12 months unless otherwise extended
  4. 4.The motion is allowed to that extent

Authorities

#

Legislation

  • Court of Appeal RulesRule 5(2)(b)
  • Court of Appeal RulesRule 42(1)
  • Court of Appeal RulesRule 47(1)&(2)
  • Civil Procedure RulesOrder 40 Rules 1, 2, 3(3) & 4
  • Land Registration ActSections 24, 25, 26 and 35

Cases cited (8)

  • Githunguri v Jimba Corporation Limited
    (1988) KLR 838
  • Northwood Development Company Limited v Husein Alibhai Pirbhai & 2 others
    [2015] eKLR
  • Reliance Bank Ltd (In Liquidation) vs. Norlake Investments Ltd
    Civil Appl. No. Nai. 93/02 (UR)
  • Emirates Airline Limited v Stephen Chase Kisaka
    [2015] eKLR
  • Republic v Kenya Anti-Corruption Commission & 2 others
  • Cooperative Bank of Kenya Limited v Banking Insurance and Finance Union (Kenya)
    [2014] eKLR
  • Hashmukhlal Virchand Shah & 2 others v Investment & Mortgages Bank Limited
    [2014] eKLR
  • Reliance Bank Ltd versus Nor Lake Investment Ltd
    [2002] IEA 227
On appeal from
Environment and Land Court, Kisumu
Kisumu High Court Land Case No. 3 of 2015
Jurisdiction invoked
Rules 5(2)(b), 42(1) and 47(1)&(2) of the Court of Appeal Rules

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (2)

#

Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

#

Cite this brief

Caselaw, "George Otieno Gache & another v Judith Akinyi Bonyo & 5 others [2017] KECA 246 (KLR)", Case Analysis (2017). Civil Application (Kisumu) - not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/246/eng@2017-10-05

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