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Court of AppealAllowedCivil Application No. 118 of 2020· [2020] KECA 213 (KLR)

Josephat Mulwa Mukima v Jesse Ng’ang’a Gakobo & 11 others [2020] KECA 213 (KLR)

Court of Appeal of Kenya
6 November 2020
DMD. K. MusingaPKP. O. KiageFSF. Sichale
989 words in judgment
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The bottom line

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The Court of Appeal stopped the sale or transfer of disputed Machakos land until an appeal over ownership is heard, protecting the claimed owner.

What this practically means

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Executive summary

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This was a single-judge-panel application, decided by Musinga, Kiage and Sichale JJ.A at Nairobi, under rule 5(2)(b) of the Court of Appeal Rules, 2010 and sections 3A, 3B and 77 of the Appellate Jurisdiction Act, seeking injunctive relief pending the lodging, hearing and determination of an intended appeal against the ruling of Angote J delivered on 1st November 2019 and the judgment and decree of 24th April 2020 in E.L.C No. 11 of 2017 (Environment and Land Court, Machakos), which dismissed the applicant's claim to the original parcel Donyosabuk/Komarock Block 1/373 and its numerous sub-divisions. The applicant asserted he was the registered owner of the original parcel, that his title had been misplaced and later recovered, and that he had neither sub-divided nor sold the land. Only the 8th respondent (Afya Investment Co-operative Society Limited) responded, conceding arguability but contending the appeal would not be rendered nugatory because it was financially able to compensate the applicant. The court, applying the principles summarized in Stanley Kangethe Kinyanjui v Tony Keter & Others, held that although arguability was undisputed, the appeal would be rendered nugatory if the suit properties were re-sold, charged or otherwise dealt with pending the appeal. It granted the injunction sought in prayer 3, exempted the applicant from serving the notice of appeal and record of appeal upon the 2nd, 3rd, 9th and 12th respondents, and ordered that costs of the application be in the appeal. The trial court's decision was not disturbed at this interlocutory stage.

Key legal issues

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Nugatory-value test for rule 5(2)(b) relief in land appeals

Holding

The court found the nugatory limb satisfied because the suit properties could be re-sold or otherwise dealt with pending the intended appeal, and granted the injunction.

Reasoning

The court applied the settled principles governing rule 5(2)(b) applications as summarized in Stanley Kangethe Kinyanjui v Tony Keter & Others. It noted that arguability of the intended appeal was not disputed, and turned to whether the appeal would be rendered nugatory. Because the suit properties comprised sub-divided parcels already occupied by purchasers and co-operative societies and could be re-sold, charged or dealt with in a manner prejudicial to the applicant if he ultimately succeeded, preservation by injunction was warranted. The exemption from service on non-participating respondents was also granted.

p. 2

Legal principles established

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  • An injunction under rule 5(2)(b) will be granted where the intended appeal is arguable and would be rendered nugatory if the property is sold, charged or otherwise dealt with pending the appeal.

Court orders

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  1. 1.The order of injunction as sought in prayer 3 of the Notice of Motion dated 11th May 2020 is granted
  2. 2.The applicant is exempted from serving a notice of appeal and the record of appeal upon the 2nd, 3rd, 9th and 12th respondents
  3. 3.The costs of the application shall be in the appeal

Authorities

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Legislation

  • Appellate Jurisdiction Act, Cap 9, Laws of Kenyasection 3A
  • Appellate Jurisdiction Act, Cap 9, Laws of Kenyasection 3B
  • Appellate Jurisdiction Act, Cap 9, Laws of Kenyasection 77(1)
  • Court of Appeal Rules, 2010rule 5(2)(b)
  • Court of Appeal Rules, 2010rule 47(1) and (2)

Cases cited (1)

  • Stanley Kangethe Kinyanjui v Tony Keter & Others
    [2013] eKLR
On appeal from
Environment and Land Court of Kenya at Machakos
E.L.C No. 11 of 2017
Jurisdiction invoked
Sections 3A, 3B and 77(1) of the Appellate Jurisdiction Act, Cap 9, Laws of Kenya and Rules 5(2)(b) and 47(1) and (2) 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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Cite this brief

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Cite this brief

Caselaw, "Josephat Mulwa Mukima v Jesse Ng’ang’a Gakobo & 11 others [2020] KECA 213 (KLR)", Case Analysis (2020). Civil Application No. 118 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/213/eng@2020-11-06

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