Edward C Kungu & another (Suing as the Legal Representative of the Estate of Janet R Kungu v David Ndungu Njihia & 6 others [2020] KECA 415 (KLR)

Court of Appeal

7 August 2020

WKW. Karanja

M.K. Koome HOHannah Okwengu

1,183 words in judgment

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The bottom line

The Court of Appeal froze land sales in Nyandarua because selling the property during the appeal would make winning the case pointless.

What this practically means

Executive summary

This was an application under Rules 5(2)(b) and 43 of the Court of Appeal Rules and sections 3A and 3B of the Appellate Jurisdiction Act for an injunction pending an intended appeal against a ruling of the Environment and Land Court at Nyahururu (Oundo, J.) dated 4th February 2020, which had dismissed the applicants' motion for injunctions restraining the respondents from interfering with their possession of LR No. Nyandarua/Kahuru/143 and its subdivisions 10002-10014. The applicants, who pleaded fraud in their plaint and sought declarations nullifying the respondents' titles, argued the ELC had disregarded binding precedent on bona fide purchasers and misapprehended Giella v Cassman Brown. The respondents maintained the motion was properly dismissed, that the applicants' predecessor in title never owned the property, and that the applicants were themselves victims of fraud by a third party. Applying the twin Rule 5(2)(b) principles restated in Stanley Kangethe Kinyanjui v Tony Ketter, the Court found the appeal arguable because the question whether the judge properly exercised her discretion suffices, and found the nugatory limb satisfied because, absent an injunction, the respondents could alienate the subdivisions, rendering any successful appeal academic. The Court allowed the application, granted an injunction restraining alienation, subdivision, sale, mortgage, charge or dealing with the property and its subdivisions pending the appeal, directed that the appeal be filed within 60 days, and ordered costs of the application to abide the outcome of the appeal. The decision below was not otherwise disturbed.

Key legal issues

Whether the intended appeal is arguable

Holding

The appeal was arguable because it is arguable whether the ELC judge properly exercised her discretion in declining the injunction, and whether a binding precedent on bona fide purchaser titles was disregarded.

Reasoning

The applicants pleaded fraud and sought declarations that the register and titles were fraudulent and null and void. The ELC ruling held the questioned title gave prima facie evidence of ownership, but the fraud and competing ownership claims were not conclusively determined. The applicants faulted the judge for misdirections. One arguable point suffices under the Rule 5(2)(b) test.

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Whether the intended appeal would be rendered nugatory

Holding

Yes. Absent injunctive relief the respondents were free to dispose of the subdivisions, which may no longer be available to the applicants if the appeal succeeded.

Reasoning

The dismissal of the applicants' motion left the respondents free to deal with the subdivisions of the suit property in any way they wished, including disposing of them. If the properties were alienated before the appeal was heard, any success on appeal would be academic since the properties might no longer be available to the applicants. Preservation was therefore in the interest of justice.

p. 2

Legal principles established

An applicant under Rule 5(2)(b) must satisfy the twin principles of arguability and nugatory aspect: an arguable appeal and that the appeal will be rendered nugatory if interim orders are not granted.

Court orders

1.An order of injunction restraining the respondents, their servants or agents from alienating, subdividing, selling, mortgaging, charging, or dealing with the suit property or the subdivisions LR No Nyandarua/Kahuru/10002–10014 pending the hearing and determination of the intended appeal
2.The intended appeal, if not already filed, to be filed within 60 days from the date of the order
3.Costs of the application to abide the outcome of the appeal

Authorities

Legislation

Appellate Jurisdiction Actsection 3A
Appellate Jurisdiction Actsection 3B
Court of Appeal RulesRule 5(2)(b)
Court of Appeal RulesRule 43

Cases cited (2)

Stanley Kangethe Kinyanjui V. Tony Ketter & 5 others
(2013) eKLR
Giella vs Cassman Brown
[1973] EA 358

On appeal from: Environment and Land Court of Kenya at Nyahururu; ELC. No. 54 of 2019
Jurisdiction invoked: Sections 3A and 3B of the Appellate Jurisdiction Act and Rules 5(2)(b) and 43 of the Court Rules

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Edward C Kungu & another (Suing as the Legal Representative of the Estate of Janet R Kungu v David Ndungu Njihia & 6 others [2020] KECA 415 (KLR)", Case Analysis (2020). Civil Application No. 36 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/415/eng@2020-08-07

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