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Court of AppealAllowedCivil Application No. 56 of 2017 (UR 38/2017)· [2017] KECA 347 (KLR)

Lawrence Musango Oketch & 2 others v Karen Enterprises Limited [2017] KECA 347 (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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Kenya's Court of Appeal blocked an eviction and paused a High Court land judgment, ruling the applicants' appeal raised arguable issues and protecting the land pending appeal.

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 by three applicants seeking an interim injunction against Karen Enterprises Limited and a stay of proceedings and of the judgment of the High Court at Kisumu (Majanja, J.) of 23 May 2017, which had ordered them to vacate land parcel IR 67384 LR. No. 16345/Kisumu Municipality within 30 days and restrained further interference with the respondent's possession. The applicants claimed their families had occupied the land for 150 years and that the lease to the respondent was irregular, fraudulent and unconstitutional because the land had been compulsorily acquired for public purposes. The respondent opposed, contending there were no arguable issues and that the High Court had jurisdiction under the constitutional transition provisions. The Court restated the twin principles for rule 5(2)(b) applications, drawing on its decision in Harshmukrlal Virchand Shah & 2 Others v Investments and Morgages Bank: the appeal must be arguable and, if successful, not rendered nugatory. It found arguable issues in the challenge to the High Court's jurisdiction over land matters - holding that jurisdiction may be raised at any stage even if not raised below - and in the question of the irregularity of the compulsory acquisition. On the nugatory limb, the subject matter being land from which the applicants faced eviction, the appeal would be rendered nugatory absent the orders. The motion was allowed with injunction and stay granted, conditional on filing the record of appeal within 60 days and the appeal being heard within twelve months. Costs were made costs in the appeal.

Key legal issues

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01

Whether the intended appeal raises arguable issues under rule 5(2)(b)

Holding

The Court found two arguable issues: whether the High Court had jurisdiction to hear the land dispute, and whether the respondent irregularly acquired the suit property through compulsory acquisition.

Reasoning

The Court perused the draft memorandum of appeal containing six grounds. Grounds 1 and 2 raised the jurisdiction of the High Court over land matters. Though not raised below, jurisdiction is a pure question of law raisable at any stage, and both counsel having submitted at length on it, the issue was plainly arguable and would have to be canvassed and determined in the appeal. The irregularity of the compulsory acquisition of the suit property also raised an arguable issue.

p. 2
02

Whether the intended appeal would be rendered nugatory if stay and interim injunction are not granted

Holding

The Court found the nugatory aspect satisfied because the subject matter of the appeal is the suit property and the applicants faced eviction and possible disposal of the property.

Reasoning

The learned Judge had ordered the eviction of the applicants within 30 days. The subject matter of the intended appeal is the suit property itself. If the orders of stay and interim injunction were withheld, the applicants stood to lose occupation of the land and there was a danger of the property being disposed of, which would obviously render the appeal nugatory.

p. 2

Legal principles established

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  • Jurisdiction is an issue of law that can be raised at any stage of proceedings, even if not raised in the court below.
  • An application under rule 5(2)(b) requires the applicant to demonstrate that the appeal is arguable and that, if the orders sought are not granted, the appeal will be rendered nugatory.

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
  2. 2.Stay of the judgment of the High Court
  3. 3.Applicants to file and serve the record of appeal within 60 days from the date of the ruling
  4. 4.Appeal to be listed for hearing within twelve months from the date of filing of the record of appeal
  5. 5.Costs of the application to be costs in the appeal

Authorities

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Legislation

  • Constitution of Kenya, 2010Transition 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 of 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 347 (KLR)", Case Analysis (2017). Civil Application No. 56 of 2017 (UR 38/2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/347/eng@2017-07-27

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