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Court of AppealPartially AllowedCivil Application No. 30 of 2020· [2020] KECA 490 (KLR)

Jurgen Richard Quandt v Cindy Terry Shepard & 3 others [2020] KECA 490 (KLR)

Court of Appeal

24 July 2020

HOHannah Okwengu DMD.K. Musinga AMA.K. Murgor

1,371 words in judgment

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The bottom line

Kenya's Court of Appeal froze any sale or transfer of disputed land pending an intended appeal, but let the current occupants stay in possession.

What this practically means

Executive summary

This is a ruling of the Court of Appeal at Eldoret (Okwengu, Musinga and Murgor, JJA) on a Notice of Motion dated 6th February 2020 brought under rule 5(2)(b) of the Court of Appeal Rules, seeking a temporary injunction pending the hearing and determination of an intended appeal against a High Court ruling. The dispute arises from a succession cause in which a trial magistrate distributed land parcel River Farm L.R No. 9723/28 (Sergoit), money in a bank account and a motor vehicle among the applicant and four respondents. The applicant's appeal to the High Court failed; his applications for stay of execution were dismissed in both the magistrates' court and the High Court, the latter by Githinji, J on 9th October 2019 on grounds of undue delay and failure to demonstrate substantial loss. Applying the twin rule 5(2)(b) principles, the court found the intended appeal arguable on whether the judge rightly declined stay on res judicata grounds notwithstanding Order 42 rule 6(1) of the Civil Procedure Rules. On the nugatory limb, the court held that any sale or dealing in the subject land, from which the respondents had already extracted a decree, would destroy the substratum of the appeal. The application was allowed only to a limited extent: an injunction restraining sale, transfer, alienation, charging, wasting, mortgaging, leasing, letting or giving the land as security pending the appeal, deliberately excluding restraint on the respondents' current possession. Costs of the application were made to abide the outcome of the appeal.

Key legal issues

Whether the intended appeal was arguable

Holding

The court was satisfied the appeal was arguable because a question arose whether the judge rightly declined stay on res judicata grounds despite Order 42 rule 6(1).

Reasoning

The court identified a live question: the High Court refused stay because a similar application had been dealt with by the trial court, holding it res judicata. The court considered this questionable in light of the express stipulations of Order 42 rule 6(1) of the Civil Procedure Rules, 2010 on stay in cases of appeal, making the intended appeal arguable on that single but substantial point.

p. 2

Whether the intended appeal would be rendered nugatory absent an injunction

Holding

The court found the appeal would be rendered nugatory if the subject land were sold or dealt with, and granted an injunction limited to prohibitions on dealings, excluding possession.

Reasoning

The court distinguished between prohibitions on sale, transfer or disposal (which would destroy the substratum and remove the land from the court's remit) and interference with the respondents' current possession. Having extracted a decree, the respondents could execute at any time; any compromise of the subject land would render the appeal nugatory. The injunction was therefore tailored to preserve the substratum without evicting those in possession.

p. 2

Legal principles established

An applicant under rule 5(2)(b) must satisfy the twin principles of arguability and nugatory-ness.

Court orders

1.A temporary injunction restraining the respondents, their servants and agents or any other person from selling, transferring, alienating, charging, wasting, mortgaging, leasing, letting, giving as security or in any way dealing with the subject land pending the determination of the intended appeal
2.Costs of the application to abide the outcome of the appeal

On appeal from: High Court at Eldoret; Eldoret HCCA No. 13 of 2013
Jurisdiction invoked: rule 5(2)(b) of the Court of Appeal Rules

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Jurgen Richard Quandt v Cindy Terry Shepard & 3 others [2020] KECA 490 (KLR)", Case Analysis (2020). Civil Application No. 30 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/490/eng@2020-07-24

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