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Court of AppealOtherCivil Application No. 216 of 2018· [2018] KECA 165 (KLR)

Cross Current Indigenious Network v Commissioner of Lands & another [2018] KECA 165 (KLR)

Court of Appeal
9 November 2018
2,838 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal blocked any sale or transfer of disputed land pending appeal, but refused to reverse an eviction that had already happened.

What this practically means

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Executive summary

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This is a Rule 5(2)(b) ruling of the Court of Appeal at Nairobi (Nambuye, Gatembu Kairu and Sichale, JJA) in an application by Cross Current Indigenious Network seeking stay of execution and injunctions pending an intended appeal against the judgment of the Environment and Land Court (Mutungi, J) of 19th April 2018, which dismissed the applicant's claim to L.R. No. 209/11635 based on a 1992 letter of allotment, found the applicant lacked locus standi, entered judgment for the African Inland Church (Kenya) on its counterclaim for possession and damages for trespass, and ordered the applicant to vacate within 30 days. The Court restated the settled twin test for relief under Rule 5(2)(b): the applicant must show an arguable appeal and that the appeal will be rendered nugatory absent the orders. Finding the intended appeal arguable but not declaring the merits, the Court addressed the nugatory limb against conflicting accounts of possession. Affidavits and correspondence showed the lower court's judgment had been executed: the 2nd respondent had taken control, entered fresh lease and licence agreements with the same tenants, and was collecting rent. The Court therefore held that stay and eviction-restraining orders were no longer available and would serve no purpose. Invoking the object of Rule 5(2)(b) as preservation of the subject matter, the Court granted a modified injunction restraining the respondents from alienating, selling or transferring the property pending the intended appeal, conditioned on the applicant filing and serving its memorandum and record of appeal within 45 days, failing which the injunction would stand discharged and the application dismissed with costs to the 2nd respondent. Costs of the application were made to abide the outcome of the intended appeal.

Key legal issues

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01

Test for granting stay or injunction pending appeal under Rule 5(2)(b)

Holding

The applicant must show the intended appeal is arguable and that it will be rendered nugatory if the orders are not granted.

Reasoning

The Court restated the settled two-pronged test from Ishmael Kagunyi Thande vs Housing Finance of Kenya Limited. Both conditions must be satisfied before the Court exercises its original and discretionary jurisdiction under Rule 5(2)(b). The Court found the intended appeal arguable, applying the principle that an arguable appeal need not necessarily succeed.

p. 2
02

Whether stay or injunction restraining eviction remains available where the decree has already been executed

Holding

Where possession has already changed hands pursuant to the judgment, stay and eviction-restraining orders are unavailable and purposeless; the Court fashions preservation orders instead.

Reasoning

Relying on correspondence and affidavits showing the 2nd respondent had taken control, entered fresh leases and collected rent, the Court held that prayers for stay and restraint of eviction served no purpose. Guided by the object of Rule 5(2)(b) as preservation of the subject matter, it instead granted a modified injunction restraining alienation, sale or transfer of the property pending appeal, with a 45-day filing condition.

p. 3

Legal principles established

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  • An applicant under Rule 5(2)(b) must satisfy both limbs: an arguable appeal and that the appeal will be rendered nugatory absent the orders.
  • An arguable appeal need not necessarily succeed; it is enough that it is deserving of the Court's consideration.
  • The object of Rule 5(2)(b) is preservation of the subject matter of the appeal to ensure just and effective determination of appeals.

Court orders

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  1. 1.An order of injunction restraining the respondents from alienating, selling, or transferring the property pending the hearing and determination of the applicant's intended appeal, in terms of prayer 4 of the application as modified
  2. 2.The applicant to file and serve its memorandum and record of appeal within 45 days from the date of delivery of the Ruling, failing which the order of injunction shall stand discharged and the application dated 24th July 2018 shall stand dismissed with costs to the 2nd respondent
  3. 3.Costs of the application to abide the outcome of the intended appeal

Authorities

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Legislation

  • Appellate Jurisdiction ActSection 3A
  • Appellate Jurisdiction ActSection 3B
  • Court of Appeal RulesRule 5(2)(b)

Cases cited (6)

  • Mugah vs. Kunga
    [1988] KLR 748
  • Grace Wairimu Sorora vs Chaka Limited & 7 others
    [2015] eKLR
  • Malcolm Bell vs. Daniel Toroitich Arap Moi & another
    [2006] eKLR
  • Ishmael Kagunyi Thande vs. Housing Finance of Kenya Limited
    [2007] eKLR
  • Dennis Mogambi Mong’are vs. Attorney General & others
    [2012] eKLR
  • Equity Bank Limited vs West Link Mbo Limited
    Civil Application No. Nai 78 of 2011
On appeal from
Environment and Land Court of Kenya at Nairobi (Milimani)
ELC No. 535 of 2000
Jurisdiction invoked
Sections 3A and 3B of the Appellate Jurisdiction Act and 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, "Cross Current Indigenious Network v Commissioner of Lands & another [2018] KECA 165 (KLR)", Case Analysis (2018). Civil Application No. 216 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/165/eng@2018-11-09

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