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Court of AppealDismissedCivil Application No. 29 of 2019· [2019] KECA 348 (KLR)

Mara North Holdings Limited & 2 others v Mara North Conservancy Land Owners Association & 12 others [2019] KECA 348 (KLR)

Court of Appeal
27 September 2019
William OukoW. OukoPKP.O. KiageFSF. Sichale
806 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to block a Mara Conservancy management order, dismissing the applicants' injunction and stay bid as frivolous and with costs.

What this practically means

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Executive summary

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The applicants sought, under Rule 5(2)(b) of the Court of Appeal Rules, an injunction and stay of execution of an order of the Narok Environment and Land Court (M. Kullow, J.) dated 17th January 2019, by which the Judge extended ex parte conservatory orders restraining the applicants from replacing the 12th respondent as conservation manager until the inter partes hearing of the respondents' motion fixed for 7th February 2019. The intended appeal challenged only the extension of the ex parte orders. The Court began by reminding practitioners that on a Rule 5(2)(b) application it cannot make definitive or final findings of fact or law, as that would embarrass the hearing of the main appeal, noting the application had been canvassed as though it were the pending petition. The Court held that the intended appeal was frivolous because in extending the contested order the Judge was exercising judicial discretion, and that the appeal would not be rendered nugatory since the applicants' application to set aside the ex parte orders and the main motion remained pending before the trial court, and the 12th respondent had managed the conservancy for over 10 years without rebuttal. Invoking the overriding objective in sections 1A and 1B of the Civil Procedure Act, and criticising the unnecessary application given the court's heavy caseload, the Court dismissed the application with costs to the respondents. The ruling is a single judgment of the full bench of three Judges of Appeal with no separate opinions.

Key legal issues

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01

Limits of the court's function on a Rule 5(2)(b) application

Holding

The Court will not make definitive findings of fact or law on such an interlocutory application

Reasoning

The Court cautioned that the application had been canvassed as though it were the pending petition. Determining substantive issues at that interlocutory stage would embarrass the ultimate hearing of the main appeal before the trial court, contrary to the settled practice. Counsel were reminded of this limit before the application was assessed on the ordinary twin principles.

p. 2
02

Whether the intended appeal is frivolous and non-nugatory

Holding

The intended appeal against the extension of ex parte conservatory orders is frivolous and will not be rendered nugatory

Reasoning

In extending the ex parte orders the Judge exercised judicial discretion. The applicants' own application to set aside the orders, and the main motion, remained pending and unheard in the court below, so the appeal could not be rendered nugatory. The 12th respondent had managed the conservancy for over 10 years without rebuttal. Sections 1A and 1B of the Civil Procedure Act demand expeditious, proportionate resolution.

p. 2
03

Overriding objective under sections 1A and 1B of the Civil Procedure Act

Holding

Courts must facilitate just, expeditious, proportionate and affordable resolution of disputes, and counsel must assist in that objective

Reasoning

The Court invoked the overriding objective provisions to criticise the unnecessary interlocutory application, noting the court's heavy caseload and shortage of judges, and that nearly eight months had passed without the trial court's motion being heard because of this application.

p. 2

Legal principles established

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  • On a Rule 5(2)(b) application the Court of Appeal cannot make definitive or final findings of fact or law, as doing so may embarrass the hearing of the main appeal

Court orders

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  1. 1.The application for injunction and stay of execution is dismissed with costs to the respondents

Authorities

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Legislation

  • Civil Procedure ActSection 1A
  • Civil Procedure ActSection 1B
  • Court of Appeal RulesRule 5(2)(b)

Cases cited (1)

  • Damji Pragji Mandavia V. Sara Lee Household & Body Care (K) Ltd, Civil Application No. Nai. 345 of 2004
    Civil Application No. Nai. 345 of 2004
On appeal from
Narok Environment and Land Court
Petition No. 21 of 2018
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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Later judgments citing this (4)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Mara North Holdings Limited & 2 others v Mara North Conservancy Land Owners Association & 12 others [2019] KECA 348 (KLR)", Case Analysis (2019). Civil Application No. 29 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/348/eng@2019-09-27

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