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Case Brief · caselaw.co.ke
Court of AppealPartially AllowedNot stated in the judgment (Notice of Motion dated 18th April 2019)· [2021] KECA 236 (KLR)

Bernard Mbuti Kang’oroti v Njagi Gikungi & 1 other

Court of Appeal of Kenya
3 December 2021
1,177 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 preserved the current state of a disputed farm pending appeal, but only if the appeal is filed within 90 days.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Nairobi on a Notice of Motion dated 18th April 2019 by Bernard Mbuti Kang'oroti under rule 5(2)(b) of the Court of Appeal Rules, seeking an injunction pending an intended appeal against a High Court decision partly dismissing his adverse possession claim over land parcel Mbeti/Gachuriri/30. The trial court had awarded him 3 of 5 subdivided portions (parcels 1831, 1832 and 1835), while the subdivided portions 1833 and 1834 were transferred to the 2nd respondent, Lucy Wanjiku Magondu. Applying the settled two-limb test from Republic v Kenya Anti-Corruption Commission & 2 others, the court found the intended grounds arguable - notably that the judge wrongly held the registered owner retained ownership of the subdivided portions despite finding title extinguished by possession since 1980. However, the applicant failed the nugatory limb: both parties claimed occupation and the pleadings showed no demonstrated intent by the 2nd respondent to evict him. Declining the injunction sought, the court instead ordered maintenance of the status quo as at 13th March 2019 pending the appeal, required the appeal to be filed within 90 days failing which the status quo order lapses, and awarded costs in the intended appeal. The ruling binds subordinate consideration of rule 5(2)(b) applications on the test for arguability and the discretionary preference for status quo orders in disputed-occupation cases. The judgment is a single unanimous decision of the coram of Nambuye, Kiage and Murgor, JJA, delivered at Nairobi on 3rd December 2021.

Key legal issues

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01

Whether the intended appeal is arguable

Holding

Yes - the grounds, including the claim that the trial judge wrongly found the registered owner remained owner of the subdivided portions despite title being extinguished by adverse possession, were arguable.

Reasoning

The applicant intended to argue that the trial court failed to properly evaluate the evidence by holding he was not in occupation of the entire parcel. The court applied the settled test that an arguable appeal need not succeed, only warrant interrogation, and that a single bona fide arguable ground suffices. The intended grounds met that threshold.

p. 3
02

Whether the appeal would be rendered nugatory

Holding

No - the applicant failed to demonstrate the second limb, as both parties claim occupation and no intent to evict was shown.

Reasoning

Both the applicant and the 2nd respondent asserted occupation of the subdivided portions. The court found nothing in the pleadings demonstrating an intent by the 2nd respondent to evict the applicant, so the success of the appeal could not be rendered nugatory. The injunction as sought would not meet the ends of justice.

p. 3
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The appropriate interim order

Holding

Maintenance of the status quo as at 13th March 2019 pending the appeal, with the appeal to be filed within 90 days failing which the order lapses.

Reasoning

Given the mutual claims of occupation, the court held that an injunction would not serve both parties; the order best suited was maintenance of the status quo, coupled with a filing deadline for the intended appeal and a lapse clause on default.

p. 3

Legal principles established

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  • An arguable appeal under rule 5(2)(b) need not be one that must succeed; a single bona fide arguable ground of appeal suffices.
  • The threshold for rule 5(2)(b) relief is dual: the appeal must be arguable, and the success must not be rendered nugatory.

Court orders

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  1. 1.The status quo prevailing on the subdivided portions as at 13th March 2019, as ordered in the interim order of 5th October 2020, to be maintained between the applicant and the 2nd respondent pending hearing and determination of the appeal
  2. 2.The intended appeal, if not yet filed, to be filed within ninety (90) days of the date of the ruling and thereafter processed for expeditious disposal
  3. 3.In default of filing the appeal within 90 days, the status quo order to stand lapsed
  4. 4.Costs in the intended appeal
On appeal from
High Court of Kenya
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules (injunction pending the hearing and determination of an intended appeal)

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, "Bernard Mbuti Kang’oroti v Njagi Gikungi & 1 other", Case Analysis (2021). Not stated in the judgment (Notice of Motion dated 18th April 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/236/eng@2021-12-03

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