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Court of AppealAllowedCivil Application No. NAI. 15 of 2017 (UR 11/2017)· [2017] KECA 603 (KLR)

Christopher Kioi & another (suing on behalf of the estate of Mwangi Kioi (Deceased) v Winnie Mukolwe, Julia Kirira & Hope Mutua (sued as the administrators of the estate of David Nyambu Jonathan Kituri (deceased) & another [2017] KECA 603 (KLR)

Court of Appeal
31 March 2017
1,645 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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Kenya's Court of Appeal blocked the sale of a Juja land parcel for six months, showing courts will preserve disputed property until an appeal is decided.

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 (Visram, Sichale and J. Mohammed, JJ.A) on an application under Rule 5(2)(b) of the Court of Appeal Rules for an injunction pending the hearing and determination of an intended appeal against the judgment of N. Gacheru, J. dated 27th January 2017 in ELC No. 544 of 2009. The applicants, administrators of the estate of Mwangi Kioi, had lost at trial their claim that the title of David Nyambu Jonathan Kituri to L.R No. 10090/24 in Juja had been extinguished by adverse possession after more than 39 years of possession by Mwangi and his family. The trial Judge, relying on a Deputy Registrar's site-visit report finding the property unoccupied and bushy, held that possession was not open, continuous and adverse, and dismissed the suit. The respondents had also entered a sale agreement over the property with the second respondent, who paid a deposit. Applying the settled twin principles under Rule 5(2)(b) - an arguable appeal and nugatory-ness - the Court found the intended appeal arguable on adverse possession, the Deputy Registrar's jurisdiction and the trial Judge's reliance on her findings, and held that transfer of the property would render the appeal nugatory. The Court allowed the application, granted an injunction for six months (extendable on application), with costs of the application to abide the outcome of the intended appeal. The decision below was not disturbed at this interlocutory stage.

Key legal issues

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01

Test for grant of injunction pending appeal under Rule 5(2)(b)

Holding

The jurisdiction is original and discretionary, and the twin principles of an arguable appeal and nugatory-ness must both be satisfied.

Reasoning

The Court restated the settled test: an applicant must demonstrate a good and arguable appeal deserving consideration, and that the appeal, if successful, would be rendered nugatory if the injunction is not granted. These principles, long established in the Court's jurisprudence, were applied to the facts of the application.

p. 3
02

Whether the intended appeal was arguable

Holding

The intended appeal was arguable on issues concerning adverse possession, the Deputy Registrar's site-visit findings and the trial Judge's reliance on them.

Reasoning

Without making definitive findings of fact or law that could embarrass the full hearing, the Court identified as arguable whether the Judge properly appreciated open, continuous and adverse occupation, whether the Deputy Registrar had jurisdiction to make the findings she did, and whether the Judge erred in relying on those findings on possession.

p. 3
03

Whether the appeal would be rendered nugatory

Holding

The appeal would be rendered nugatory if the suit property, the substratum of the appeal, were transferred to the second respondent pending the appeal.

Reasoning

The Court weighed the competing claims: the applicants claimed 39 years' possession while the respondents had entered a sale agreement and received a deposit. Unless restrained, transfer of the property would detrimentally affect the applicants and render the appeal nugatory, calling for preservation of the suit property.

p. 3

Legal principles established

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  • 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 the order sought is not granted.
  • Rule 5(2)(b) exists to preserve the subject matter of an appeal pending its determination.

Court orders

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  1. 1.Application allowed; injunction granted restraining the respondents, their agents, servants and/or employees from alienating, disposing of or dealing with title in L.R No. 10090/24 Juja or interfering with the applicants' possession for a period of six months
  2. 2.Applicants at liberty to apply for extension of the six-month period if the appeal is not determined within that time
  3. 3.Costs of the application to abide the outcome of the intended appeal

Authorities

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Legislation

  • Court of Appeal RulesRule 5(2)(b)

Cases cited (5)

  • Equity Bank Limited -vs- West Link Mbo Limited
    [2013] eKLR
  • Patel -vs- Transworld Safaris Ltd
    [2004] eKLR
  • Patrick Mweu Musimba vs- Richard N. Kalembe Ndile & 3 Others
    [2013] eKLR
  • Stanley Kangethe Kinyanjui -vs- Tony Ketter & 5 Others
    [2013] eKLR
  • Reliance Bank Ltd -vs- Norlake Investments Limited
    (2000) 1 EA 227
On appeal from
High Court of Kenya at Nairobi
ELC No. 544 of 2009
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, "Christopher Kioi & another (suing on behalf of the estate of Mwangi Kioi (Deceased) v Winnie Mukolwe, Julia Kirira & Hope Mutua (sued as the administrators of the estate of David Nyambu Jonathan Kituri (deceased) & another [2017] KECA 603 (KLR)", Case Analysis (2017). Civil Application No. NAI. 15 of 2017 (UR 11/2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/603/eng@2017-03-31

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