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Court of AppealAllowedEldoret Civil Appeal (Application) No. 70 of 2020· [2020] KECA 110 (KLR)

Sultan Hasham Lalji v Simba Hills Farm Limited & 5 others [2020] KECA 110 (KLR)

Court of Appeal
4 December 2020
707 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 stopped the transfer of a 1,680-acre farm pending appeal, because the land could be lost forever if handed over now.

What this practically means

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Executive summary

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This is a ruling of a three-judge bench of the Court of Appeal (Musinga, Kiage and Sichale, JJ.A) on a motion dated 25th June 2020 brought under Rule 5(2)(b) of the Court of Appeal Rules by Sultan Hasham Lalji. He sought a stay of execution of the judgment of the Environment and Land Court at Eldoret (Odeny, J.) dated 4th March 2020 in ELC No. 71 of 2017, which had ordered transfer to the first respondent of L.R No. 8304, Eldoret North in Moiben measuring 1680 acres, and had dismissed his counterclaim. The applicant argued the appeal was arguable and would be rendered nugatory if the land were transferred, charged or disposed of to third parties. The first respondent countered that the appeal was not arguable, that the judgment had been fully executed with transfer effected and title issued, and that damages would suffice. Applying the twin Rule 5(2)(b) principles drawn from Stanley Kangethe Kinyanjui v Tony Ketter, the court held the appeal arguable - notably on whether the entire 1680 acres should have been transferred and on the dismissal of the counterclaim - and that the land's preservation required interim orders. The application was allowed, preservation/status quo ante orders issued pending appeal, the appeal was directed to be fast-tracked on priority, and costs were made to abide the outcome of the appeal. The decision below was not otherwise disturbed at this interlocutory stage.

Key legal issues

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01

Arguability of the appeal

Holding

The appeal was arguable; the court could not dismiss the grounds as frivolous, citing the question whether the entire 1680 acres should have been transferred and the dismissal of the counterclaim.

Reasoning

The court restated that an arguable appeal is one raising at least one bona fide issue worthy of consideration, not one that must necessarily succeed. It identified specific grounds - the transfer of the whole 1680-acre parcel and the wholesale dismissal of the applicant's counterclaim - as raising bona fide issues fit for the Court's consideration.

p. 2
02

Nugatory value of the appeal

Holding

The subject matter was land of which the applicant was registered proprietor before judgment; transfer or disposal to third parties would take it beyond his reach, so preservation orders were warranted.

Reasoning

The court found it undisputed that the applicant was registered proprietor prior to the impugned judgment. Because the subject matter was land capable of being transferred to third parties and thereby taken beyond the applicant's reach, the interests of justice required orders preserving the status quo ante pending appeal.

p. 2

Legal principles established

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  • An applicant under Rule 5(2)(b) must satisfy the twin tests of an arguable appeal and that the appeal will be rendered nugatory absent interim relief; arguability does not require an appeal that must succeed.
  • An appeal is rendered nugatory where damage of an irreversible or prejudicial character, destructive of the substratum of the appeal, occurs in the interim.

Court orders

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  1. 1.Application allowed; orders issued to preserve the subject matter and preserve the status quo ante pending the hearing and determination of the appeal
  2. 2.Appeal to be processed and fast-tracked for hearing on priority
  3. 3.Costs to abide the outcome of the appeal

Authorities

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Legislation

  • Court of Appeal RulesRule 5(2)(b)

Cases cited (1)

  • STANLEY KANGETHE KINYANJUI vs. TONY KETTER & 2 OTHERS
    [2013] eKLR
On appeal from
Environment and Land Court of Kenya at Eldoret
ELC No. 71 of 2017
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules (application for stay of execution, injunction or order pending appeal)

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, "Sultan Hasham Lalji v Simba Hills Farm Limited & 5 others [2020] KECA 110 (KLR)", Case Analysis (2020). Eldoret Civil Appeal (Application) No. 70 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/110/eng@2020-12-04

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