Akhan Holdings Limited & another v National Social Security Fund Board of Trustees [2020] KECA 465 (KLR)

Court of Appeal

7 August 2020

RNR.N. Nambuye HOHannah Okwengu DMD.K. Musinga

375 words in judgment

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The bottom line

Kenya's Court of Appeal paused a long-running land dispute, confirming that cases about land ownership belong in the Environment and Land Court.

What this practically means

Executive summary

This is a short interlocutory ruling of the Court of Appeal at Nairobi in Civil Application No. 94 of 2020, an application by Akhan Holdings Limited and Sammy Boit Arap Kogo for an injunction and/or stay of proceedings pending an appeal against the ruling of Farah Amin, J. delivered on 19th November 2019 in HCCC No. 268 of 2004. In the High Court the applicants had sought transfer of the long-running commercial suit to the Environment and Land Court on the ground that it concerned ownership of L.R. No. 18486 and that, under Article 162(2)(b) of the Constitution, only the Environment and Land Court has jurisdiction over such disputes. The learned judge dismissed the application, finding that the dispute fell squarely within the jurisdiction of the Environment and Land Court, but nonetheless directed that the file be placed before the presiding judge of the Commercial and Admiralty Division for re-allocation. The application before the Court of Appeal was unopposed, with no appearance entered by the respondent. Applying the established twin tests, the Court held that the intended appeal was arguable and that the nugatory aspect was satisfied: unless the orders were granted, the suit might proceed to hearing before a court that may have no jurisdiction. The Court granted the orders as sought and made no orders as to costs. The decision is unanimous and binds the High Court on the handling of this suit pending appeal.

Key legal issues

Arguability of the intended appeal on jurisdiction of the Environment and Land Court

Holding

The Court was satisfied the intended appeal is arguable.

Reasoning

The applicants sought transfer of HCCC No. 268 of 2004 from the Commercial and Admiralty Division to the Environment and Land Court on the basis that under Article 162(2)(b) of the Constitution, disputes over ownership of land fall within the exclusive jurisdiction of the Environment and Land Court. The High Court had found the dispute fell within that jurisdiction yet directed re-allocation, a state of affairs the Court of Appeal found sufficient to render the appeal arguable.

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Nugatory aspect

Holding

The nugatory test was satisfied because the suit might proceed before a court that may lack jurisdiction.

Reasoning

The Court agreed with the applicant's contention that unless the injunction and/or stay were granted, the suit could be heard and determined by a court that may have no jurisdiction, thereby rendering the intended appeal nugatory. On that combined finding of arguability and nugatory effect, the Court granted the orders sought in the unopposed application and made no orders as to costs.

p. 1

Legal principles established

An application for injunction and/or stay pending appeal will be granted where the intended appeal is arguable and the nugatory test is satisfied; here, proceedings before a court that may lack jurisdiction would render the appeal nugatory.

Court orders

1.Orders of injunction and/or stay of proceedings granted as sought in the application
2.No orders as to costs

Authorities

Legislation

Constitution of Kenya, 2010Article 162(2)(b)

On appeal from: High Court of Kenya at Nairobi; H.C.C.C. No. 268 of 2004
Jurisdiction invoked: Inherent appellate jurisdiction of the Court of Appeal (Rule 5(2)(b)-type injunction and stay pending appeal application); the judgment does not state the specific rule

Key timeline

Practical implications

Frequently asked questions

Later judgments citing this (1)

Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Patel & another v Mbaria & 6 others (Civil Application E634 of 2024) [2025] KECA 1118 (KLR)
[2025] KECA 1118 (KLR)20 Jun 2025

Cite this brief

Caselaw, "Akhan Holdings Limited & another v National Social Security Fund Board of Trustees [2020] KECA 465 (KLR)", Case Analysis (2020). Civil Application No. 94 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/465/eng@2020-08-07

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