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Court of AppealPartially AllowedCivil Application No. NAI. UR.113 of 2010· [2020] KECA 556 (KLR)

Joseph Mburu Gitau & 636 others v Commissioner of Police & 2 others [2020] KECA 556 (KLR)

Court of Appeal
10 July 2020
735 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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Kenya's Court of Appeal declined the requested injunction over a contested Nairobi parcel, instead ordering all parties to keep the status quo until its pending judgment.

What this practically means

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Executive summary

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This is an interlocutory ruling of the Court of Appeal at Nairobi (Koome, Musinga and Sichale, JJA) on a Notice of Motion dated 8th May 2020, in which the applicants, Joseph Mburu Gitau and 626 others, sought an injunction and restraining orders preventing the Commissioner of Police, the Commissioner of Lands and the Attorney General from leasing, selling, transferring or otherwise alienating land known as LR No. 209/14582 (Original LR No. 209/106110) to China Bridge Corporation Ltd or any other party pending delivery of judgment in Civil Appeal No. 179 of 2019, an appeal against a judicial review decision of Nyamu, J. dated 2nd May 2008. The applicants alleged the land was being or had been alienated to defeat the appeal. The respondents, through Chief Inspector Geofrey Waruru Kinyua's affidavit, denied the claims, accused the applicants of forgery, challenged the existence of their title, and pointed to a related suit in the Environment and Land Court (ELC No. 2028 of 2009). China Bridge Corporation Ltd, served though not a party to the appeal, opposed on the grounds of non-joinder and that the order under appeal arose from judicial review proceedings in which no injunction was sought. The court found the claims irreconcilably conflicting, noted only that the 1st respondent was in possession and that any alienation was unclear, and declined the injunction as sought. Instead it directed that the status quo as at the date of the ruling be maintained by the respondents until delivery of the pending judgment. No costs order was recorded. The ruling is interlocutory and preserves the subject matter of the pending appeal rather than determining the substantive issues.

Key legal issues

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01

Interim preservation of suit land pending judgment in a pending appeal

Holding

The court granted only a status quo order rather than the injunction and restraining orders sought, given the conflicting allegations and the pendency of the appeal.

Reasoning

The applicants alleged the respondents had leased or transferred the land to China Bridge Corporation Ltd to defeat the appeal; the respondents denied this, accused the applicants of forgery and questioned the very existence of the title. The court found itself seized of the pending appeal, noted that the 1st respondent was in possession but that alienation was unclear, and that the order was directed at a non-party. It concluded that maintaining the status quo until judgment best served the interests of justice.

p. 2
02

Restraining orders against a non-party to the pending appeal

Holding

The court noted that the orders sought were directed to China Bridge Corporation Ltd, which was served but was not a party to the pending appeal, complicating the grant of the orders sought.

Reasoning

China Bridge Corporation Ltd opposed the application on the ground that it was not a party to the suit and ought to have been joined. The court recognised this as a complication and, rather than issuing restraining orders against a stranger to the appeal, fashioned a status quo order binding the respondents until the pending judgment is delivered.

p. 2

Legal principles established

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  • Where a pending appeal's factual matrix is hotly disputed, the Court of Appeal may preserve the subject matter by directing maintenance of the status quo until delivery of judgment, rather than granting the injunction sought

Court orders

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  1. 1.The status quo obtaining as at the date of delivery of the ruling is to be maintained by the respondents until delivery of the pending judgment in Civil Appeal No. 179 of 2019
On appeal from
High Court of Kenya at Nairobi
NRB. Jud. Rev. Div. Misc. Appl. No. 673 of 2015
Jurisdiction invoked
Inherent/appellate jurisdiction of the Court of Appeal to preserve the subject matter of Civil Appeal No. 179 of 2019 pending delivery of judgment

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, "Joseph Mburu Gitau & 636 others v Commissioner of Police & 2 others [2020] KECA 556 (KLR)", Case Analysis (2020). Civil Application No. NAI. UR.113 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/556/eng@2020-07-10

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