Cross Current Indigenious Network v Commissioner of Lands & another [2018] KECA 165 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Test for granting stay or injunction pending appeal under Rule 5(2)(b)
The applicant must show the intended appeal is arguable and that it will be rendered nugatory if the orders are not granted.
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.
Whether stay or injunction restraining eviction remains available where the decree has already been executed
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.
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.
Legal principles established
#- 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
#- 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.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.Costs of the application to abide the outcome of the intended appeal
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.