Olalui Group Ranch v Gideon Konchella & 11 others [2020] KECA 28 (KLR)
The bottom line
#Kenya's Court of Appeal stopped all dealings with disputed Trans-Mara land parcels until it hears the ranch's full appeal, protecting families facing eviction.
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
- 2.Whether, unless the injunction is granted, the appeal if successful will be rendered nugatory
Key legal issues
#Whether the intended appeal is arguable
The intended appeal was arguable because the applicant raised non-idle issues, namely that no adjudication was undertaken over the property and that the respondents were fraudulent in obtaining titles.
The court applied the settled standard that an arguable appeal need not necessarily succeed; it need only be deserving of full consideration. The applicant indicated it would demonstrate on appeal that the judge failed properly to evaluate the evidence, since no adjudication had occurred and the respondents obtained titles by fraud. The court found those issues not idle and therefore satisfied the first limb of the Rule 5(2)(b) test.
Whether the appeal would be rendered nugatory absent an injunction
The nugatory limb was satisfied because the property was occupied by many families facing eviction, and refusing the injunction would cause hardship disproportionate to that suffered by the respondents pending appeal.
The court noted material on the face of the record showing the property was occupied by many families whom the respondents asserted were trespassers. To refuse an injunction restraining their eviction would cause hardship disproportionate to any hardship the respondents might experience while waiting for the hearing and disposal of the appeal. Both prerequisites under Rule 5(2)(b) having been fulfilled, the discretion was exercised in favour of the applicant.
Legal principles established
#- An applicant under Rule 5(2)(b) must satisfy the twin tests that the intended appeal is arguable and that unless the orders sought are granted, the appeal if successful will be rendered nugatory.
- An arguable appeal is not one that must necessarily succeed but one that is deserving of full consideration by the Court.
Court orders
#- 1.The respondents are restrained by order of injunction from entering upon, occupying, surveying, distributing, alienating, invading, disposing, transferring, evicting the applicant and its members, or in any manner dealing with land parcels known as Narok/Trans-Mara/Olalui/2 to Narok/Trans-Mara/Olalui/14 pending the hearing and determination of the appeal
- 2.Costs of the application shall abide the outcome of the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Environment and Land Court at Narok
- ELC Case No. 335 of 2017
- Jurisdiction invoked
- Article 159(2)(d) of the Constitution and Rule 5(2)(b) of the Court of Appeal Rules
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.
It is incumbent on the applicant to satisfy the Court that the intended appeal is arguable and that unless the orders sought are granted, the appeal if successful, will be rendered nugatory.
an arguable appeal is not one that must necessarily succeed when the appeal is ultimately determined but one that is deserving of full consideration by the Court
Both prerequisites for the exercise of the Court’s discretion under Rule 5(2)(b) of the Court of Appeal Rules having been fulfilled, we allow the application dated dated 17 th August 2020
the respondents are hereby restrained by order of injunction from entering upon, occupying, surveying, distributing, alienating, invading, disposing, transferring, evicting the applicant and its members, or in any manner dealing with land parcels known as Narok/Trans-Mara/Olalui/2 to Narok/Trans-Mara/Olalui/14 pending the hearing and determination of the appeal.
Issues in the judgment
#The coram states the court sat at Nakuru, but the delivery clause states the ruling was dated and delivered at Mombasa.
The list of authorities names no court for China Road & Bridge Corporation and Reliance Bank beyond the citations given; treatment labels are inferred from the court's reliance on them.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Olalui Group Ranch v Gideon Konchella & 11 others [2020] KECA 28 (KLR)", Case Analysis (2020). Civil Appeal (Application) No. 80 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/28/eng@2020-12-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.