P K A v K P A [2018] KECA 337 (KLR)
The bottom line
#Kenya's Court of Appeal refused to stop an eviction, confirming that injunctions pending appeal require both an arguable appeal and proof of irreparable harm.
What this practically means
#Executive summary
#Key legal issues
#Whether the intended appeal was arguable
It was not. The applicant entered as the supposed wife of a licensee with no title, her basis of occupation disappeared with annulment of the marriage and lapse of the residency order when the son turned 18.
The court held the applicant's position could not defeat the respondent's registered title. Her occupation rested on court orders tied to her son's residency, which lapsed at 18 with no extension of parental responsibility. Her proprietary estoppel claim depended on persuading the trial judge, an equitable discretion reviewable only for perversity. Given the respondent's unchallenged indefeasible title, ordering an injunction would perpetuate rent-free occupation contrary to equity.
Whether the appeal would be rendered nugatory without an injunction
It would not; monetary compensation would be an appropriate remedy, so the applicant need not be heard on this limb.
Having found no arguable appeal, the court declined to consider the nugatory aspect. Even if arguable, relief in proprietary estoppel includes the monetary equivalent of what was promised or repayment of money laid out in reliance, so any success would not be rendered illusory by eviction. The applicant had been given 90 days by the trial judge and should have made arrangements to vacate.
Legal principles established
#- On a Rule 5(2)(b) application an applicant must satisfy both limbs: an arguable appeal and that the appeal would be rendered nugatory absent the relief sought.
- An arguable appeal is not one that must succeed, but one raising a bona fide point worthy of urging; a single arguable point suffices.
- On the nugatory limb, the harm must be grave, irreversible or irreparable and incapable of monetary compensation.
- Equity follows the law: an injunction will not be granted to perpetuate occupation against a holder of unchallenged, indefeasible title.
Court orders
#- 1.Application dismissed with costs
- On appeal from
- Environment and Land Court at Nairobi
- ELC Suit No. 157 of 2015
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "P K A v K P A [2018] KECA 337 (KLR)", Case Analysis (2018). Civil Application No. 294 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/337/eng@2018-04-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.