Julius Gichuki Gichuhi (by substitution and being a legal representative of the estate of the late Gichuhi Kimira) v Samuel Ngunu Kimotho & 3 others [2019] KECA 926 (KLR)
The bottom line
#Kenya's Court of Appeal refused to block land dealings during an appeal because the other side could pay back the property's value if the appeal succeeded.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the intended appeal is arguable under rule 5(2)(b)
- 2.Whether the intended appeal, if successful, would be rendered nugatory in the absence of an injunction pending appeal
Key legal issues
#Whether the intended appeal was arguable
Yes - the issues whether the suit had abated, whether accounts had to be taken before any lawful sub-division, and whether sub-division in fact occurred (the defunct Nairobi City Council having disowned it) were bona fide arguable points for the appeal.
The court identified disputes over abatement of a suit already heard and determined, absence of accounts before sub-division, and conflicting evidence on whether sub-division took place. It held these raise bona fide issues determinable only on appeal and, not being required to assess their merits, found one arguable point suffices under rule 5(2)(b).
Whether the appeal would be rendered nugatory without an injunction
No - the second limb failed because the estate could refund the value of the property and could only dispose of the portion registered in the name of the late Maaka Mukuhi Mugweru.
A title search showed L.R. No. 13041/2 registered to the late Maaka Mukuhi Mugweru, and the applicant did not dispute the estate's capacity to refund the value if the appeal succeeded. The respondent could dispose only of its own portion, so the appeal would not be rendered nugatory.
Legal principles established
#- To obtain relief under rule 5(2)(b) an applicant must demonstrate both that the intended appeal is arguable and that it would be rendered nugatory if not granted; both limbs must coexist.
- An arguable appeal is any appeal that raises at least one bona fide issue deserving consideration; the court does not inquire into the merits of whether the arguments will succeed.
Court orders
#- 1.The application dated the 5th June, 2017 is dismissed
- 2.The respondents shall not interfere in any way with L.R. Number 13041/3
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- HCCC No. 880 of 1977 (Consolidated with HCCC No. 908 of 1977)
- Jurisdiction invoked
- Rules 5(2)(b) and 42 of the Court of Appeal Rules
Relief refused
#Injunction restraining the respondents from interfering with L.R. Number 13041 pending the hearing and determination of the intended appeal
The applicant failed to satisfy the second limb of rule 5(2)(b): the appeal would not be rendered nugatory because the estate is capable of refunding the value and only the portion registered to the late Maaka Mukuhi Mugweru could be disposed of
Costs
No costs order was made in the judgment.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
the principles, which govern the exercise of our jurisdiction under that rule, are first, the applicant must show that the intended appeal should not be frivolous or put another way, the applicants must show that they have an arguable appeal; and second, that the appeal, if successful, should not be rendered nugatory.
The result of the foregoing is that we do not find merit in the application dated the 5th June, 2017 and we accordingly dismiss it. However, we order that the respondents shall not interfere in any way with L.R. Number 13041/3.
Issues in the judgment
#The ruling opens describing a notice of motion dated 26th September, 2018, but the disposition dismisses 'the application dated the 5th June, 2017', creating an internal inconsistency about the identity/date of the application dismissed.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Julius Gichuki Gichuhi (by substitution and being a legal representative of the estate of the late Gichuhi Kimira) v Samuel Ngunu Kimotho & 3 others [2019] KECA 926 (KLR)", Case Analysis (2019). Civil Application No. NAI. 277 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/926/eng@2019-02-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.