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Court of AppealAllowedCivil Application No. NAI E048 of 2021 (application dated 26th October, 2020)· [2021] KECA 194 (KLR)

Kamoche & 34 others v Aberdare Investment Limited; Kenya Commercial Bank (Third party); Kiarie (Interested Party) (Civil Appeal (Application) 279 of 2018) [2021] KECA 194 (KLR)

Court of Appeal of Kenya
5 November 2021
PKP.O KiageFSF. SichaleJMJ. Mohammed
1,362 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal stopped a developer from fencing and developing land where 24 families live, ruling eviction risk would make their appeal pointless.

What this practically means

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Executive summary

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This was an application under Rule 5(2)(b) of the Court of Appeal Rules by 24 applicants (led by Ezekiel Mulandi) seeking an injunction to restrain Aberdare Investment Limited from fencing off, developing or dealing with LR No. 4953/2157 pending the hearing of NAI ELC No. 342 of 2013. The underlying suit, filed in the ELC against the applicants as alleged illegal occupiers, had seen Obaga, J. order them to deposit Kshs. 10,000,000 as security for costs; on their failure, the Judge dismissed their counterclaim, and later, on 15th October 2020, dismissed their application for a temporary injunction with costs. The applicants argued that the respondent's construction and deep excavations threatened eviction and would destroy the substratum of the appeal. The respondent objected that the orders sought lay within the High Court's province, that the applicants had not complied with the security-for-costs order, and that the application was a delaying tactic. Applying the twin principles from Trust Bank v Investech and Stanley Kang'ethe Kinyanjui v Tony Ketter, the Court found a single bona fide arguable ground in the question of rightful ownership, and held that the risk of eviction from the applicants' homes, despite the theoretical availability of damages, would render a successful appeal nugatory. The Court allowed the application, granted the restraining injunction pending hearing of NAI ELC No. 342 of 2013, and ordered that costs abide the outcome of the appeal.

Key legal issues

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01

Whether the appeal is arguable

Holding

The appeal was arguable because the rightful ownership of the suit property was a bona fide issue deserving full consideration.

Reasoning

The Court applied the settled principle that an applicant need only show a single bona fide arguable ground. It identified ownership of the suit property as an arguable point without making final findings, so as not to embarrass the bench that would hear the main appeal.

p. 3
02

Whether the appeal would be rendered nugatory

Holding

Yes - the applicants faced risk of eviction from their homes and undue hardship notwithstanding the possibility of damages.

Reasoning

The Court weighed the conflicting claims of both parties on their merits. Although the applicants could be compensated in damages, the risk of eviction from their homes constituted undue hardship such that the appeal, if successful, would be rendered nugatory absent preservation orders.

p. 3

Legal principles established

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  • To succeed on a Rule 5(2)(b) application an applicant must demonstrate both that the appeal is arguable and that it will be rendered nugatory if stay or injunction is not granted.
  • An arguable appeal need not be one that must succeed, only one that is not frivolous and deserves full argument; and the court must not make definitive findings at that stage.
  • Nugatory means more than worthless or futile; it includes trifling, and the test considers whether what is sought to be stayed is reversible or compensable in damages.

Court orders

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  1. 1.Pending the hearing and determination of NAI ELC No. 342 of 2013, the 1st Respondent is restrained from fencing off, developing and/or in any other way dealing with the suit property
  2. 2.Costs shall abide the outcome of the appeal

Authorities

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Legislation

  • Court of Appeal RulesRule 5(2)(b)
  • Civil Procedure RulesOrder 26 Rule 5(1)

Cases cited (3)

  • Trust Bank Limited and Another v. Investech Bank Limited and 3 Others
    [2000] eKLR
  • Stanley Kang’ethe Kinyanjui v Tony Ketter & 5 Others
    [2013] eKLR
  • Jim Wachira Kabiru v Susan Wangui Karanja & 2 others
    [2015] eKLR
On appeal from
Environment and Land Court (ELC), Milimani, Nairobi
Nai Milimani ELC No. 342 of 2013
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules

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, "Kamoche & 34 others v Aberdare Investment Limited; Kenya Commercial Bank (Third party); Kiarie (Interested Party) (Civil Appeal (Application) 279 of 2018) [2021] KECA 194 (KLR)", Case Analysis (2021). Civil Application No. NAI E048 of 2021 (application dated 26th October, 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/194/eng@2021-11-05

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