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Court of AppealAllowedCivil Application No. 124 of 2020· [2020] KECA 64 (KLR)

Tinek Limited & another v National Land Commission & 7 others [2020] KECA 64 (KLR)

Court of Appeal
18 December 2020
963 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal paused a ruling that cancelled Tinek Limited's land titles, protecting the property until the full appeal is heard.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Nairobi (Asike-Makhandia, J. Mohammed and Kantai, JJ.A.) on a notice of motion dated 18th May 2020 brought under rule 5(2)(b) of the Court of Appeal Rules by Tinek Limited and Abdinoor Sheriff Ahmed. The applicants sought a stay of execution of the judgment of Angote, J. of the Environment and Land Court at Machakos delivered on 8th May 2020 in ELC Petition No. 60 of 2018, in which the court quashed Gazette Notice No. 11714 of 9th November 2018, declared titles to L.R. No. 337/1645 and L.R. Nos. 337/3821-3838 null and void, and declined prayers for enforcement of a compensation award of Kshs.197,985,519 and for compensation of Tinek Limited. The applicants argued that their title was revoked without being heard, that the grounds for cancelling the title were not specifically pleaded or proved, that they were bona fide purchasers, and that their rights under the Fair Administrative Actions Act were violated. Applying the settled twin principles in Stanley Kangethe Kinyanjui v Tony Ketter, the court found the intended appeal arguable on the constitutional right to be heard and the Fair Administrative Actions Act claims, and found that cancellation of title could lead to the property being transferred to third parties and placed beyond the applicants' reach, rendering the appeal nugatory. The court allowed the Motion, staying execution pending the intended appeal, with costs of the Motion in the appeal. The decision below was not disturbed at this interlocutory stage.

Key legal issues

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01

Whether the intended appeal is arguable

Holding

The alleged denial of the right to be heard before revocation of title and the alleged violation of rights under the Fair Administrative Actions Act are arguable points.

Reasoning

The court applied the settled twin principles for rule 5(2)(b) applications. It held that allegations that the applicants were not heard before their title was revoked, and that their rights under the Fair Administrative Actions Act were violated, raise constitutional and legal questions sufficiently arguable to meet the first limb.

p. 2
02

Whether the intended appeal would be rendered nugatory absent stay

Holding

Cancellation of title could result in the suit property being transferred to third parties, placing it beyond the applicants' reach and rendering the appeal nugatory.

Reasoning

The trial Judge had ordered cancellation of title to the suit property. The applicants argued the property could be transferred to third parties and the title placed beyond their reach. The court accepted that if this occurred, the intended appeal would be rendered nugatory, satisfying the second limb.

p. 2

Legal principles established

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  • An applicant for stay of execution pending appeal must demonstrate that the appeal (or intended appeal) is arguable, and that the appeal would be rendered nugatory if stay is not granted.
  • A party is entitled to be heard where an adverse order may be made against them; a claim that a party was not heard raises an arguable constitutional issue.

Court orders

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  1. 1.Stay of execution of the decision of the Environment and Land Court declaring title to L.R. Nos. 337/3821-3838 null and void, pending the hearing and determination of the intended appeal
  2. 2.Costs of the Motion to be in the appeal

Authorities

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Legislation

  • Court of Appeal RulesRule 5(2)(b)
  • Fair Administrative Actions Act

Cases cited (1)

  • Stanley Kangethe Kinyanjui v Tony Ketter & Others
    [2013] eKLR
On appeal from
Environment and Land Court of Kenya at Machakos
ELC Petition No. 60 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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Cite this brief

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Cite this brief

Caselaw, "Tinek Limited & another v National Land Commission & 7 others [2020] KECA 64 (KLR)", Case Analysis (2020). Civil Application No. 124 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/64/eng@2020-12-18

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