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Court of AppealAllowedCivil Application No. 56 of 2020· [2020] KECA 66 (KLR)

Meso Multipurpose Society Limited v Luore Nyoiro Company Limited & 2 others [2020] KECA 66 (KLR)

Court of Appeal
18 December 2020
HOHannah OkwenguSKS. Gatembu KairuAMA. K. Murgor
1,228 words in judgment
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The bottom line

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Kenya's Court of Appeal stopped an eviction, holding land in dispute should be preserved until an appeal claiming a constructive trust is fully heard.

What this practically means

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Executive summary

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This is a single-judgment ruling of the Court of Appeal at Kisumu (Okwengu, Gatembu Kairu and Murgor, JJ.A) on a motion under Rule 5(2)(b) and 42 of the Court of Appeal Rules 2010 by Meso Multipurpose Society Limited seeking an injunction pending an intended appeal against the judgment of the Environment and Land Court at Kitale (Yano, J) delivered on 7th May 2020 in ELC No. 111 of 2008. The court below had directed the applicant and its members to vacate and deliver vacant possession of parcels L.R. No. 7060/3 and 7060/4 within sixty days, failing which they would be forcefully evicted. The applicant claimed it had purchased the suit property from the previous registered owner, Dr. James Ouko, paid Kshs 17,000,000 to the 2nd respondent towards the outstanding charge, and had been in possession and developing the land since 1989. Applying the established two-limb test - arguability of the intended appeal and whether it would be rendered nugatory absent an injunction - the Court found a single bona fide arguable issue in whether the Judge erred in failing to apply the doctrine of constructive trust, and held that eviction risked rendering any successful appeal nugatory given possible disposal of the land to third parties. The Court granted the interlocutory injunction pending appeal as prayed in prayer 3 of the notice of motion dated 3rd June 2020, with costs to abide the outcome of the appeal. The application succeeded in its entirety.

Key legal issues

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01

Arguability of the intended appeal

Holding

The intended appeal was arguable because the applicant raised a bona fide issue on the doctrine of constructive trust and the money received by the 2nd respondent.

Reasoning

The Court applied the settled principle that a single bona fide arguable ground suffices. It found that whether the learned Judge erred in failing to apply the doctrine of constructive trust, given the 2nd respondent's receipt of funds from the applicant while withholding consent to transfer the land, was a live issue fit for interrogation at the hearing of the appeal, demonstrating the appeal was not frivolous.

p. 2
02

Nugatory value of the appeal

Holding

The appeal would be rendered nugatory if eviction proceeded, since the applicant and its members had occupied and developed the land since 1989 and might not recover the property or developments if it were disposed of to a third party.

Reasoning

The Court noted the subject matter is land occupied by the applicant and its members since 1989 with various developments. Eviction would create a risk that the property be disposed of to a third party, leaving the applicant unable to recover the land or the developments, thereby destroying the utility of a successful appeal.

p. 2

Legal principles established

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  • An applicant for an injunction pending appeal under Rule 5(2)(b) must satisfy two ingredients: that the intended appeal is arguable and that it will be rendered nugatory if the injunction is not granted.
  • On arguability it is sufficient if a single bona fide ground of appeal is raised; an arguable appeal need not necessarily succeed.
  • The object of Rule 5(2)(b) is preservation of the subject matter of the appeal.
  • At the Rule 5(2)(b) stage the court does not determine the merits of the intended appeal.

Court orders

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  1. 1.Order of interlocutory injunction pending appeal as prayed in prayer 3 of the applicant's notice of motion dated 3rd June 2020, restraining the respondents from evicting the applicant and its members from the suit property
  2. 2.Costs to abide the outcome of the appeal

Authorities

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Legislation

  • Court of Appeal Rules 2010Rule 5(2)(b)
  • Court of Appeal Rules 2010Rule 42

Cases cited (7)

  • Equity Bank Limited v West Link Mbo Limited
    Civil Application No. Nai 78 of 2011
  • Nelson Andai Havi vs Law Society of Kenya & 3 others
    [2018] eKLR
  • Njuguna S. Ndungu vs EACC & 3 others
    [2015] eKLR
  • Jaribu Holding Limited vs Kenya Commercial Bank Limited
    [2008] eKLR
  • Stanley Kang’ethe vs Tony Keter & 5 others
    [2013] eKLR
  • Damji Pragji Mandavia vs Sarah Lee Household & Body Care (K) Limited
    C.A. No. Nai. 345 of 2004
  • Joseph Gitahi Gachiu & Another vs Pioneer Holdings (A) Limited & 2 others
    C.A. No. 124 of 2008
On appeal from
Environment and Land Court at Kitale
ELC No. 111 of 2008
Jurisdiction invoked
Rule 5(2)(b) and 42 of the Court of Appeal Rules 2010

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (5)

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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, "Meso Multipurpose Society Limited v Luore Nyoiro Company Limited & 2 others [2020] KECA 66 (KLR)", Case Analysis (2020). Civil Application No. 56 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/66/eng@2020-12-18

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