Bernard Mbuti Kang’oroti v Njagi Gikungi & 1 other
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the intended appeal is arguable
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.
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.
Whether the appeal would be rendered nugatory
No - the applicant failed to demonstrate the second limb, as both parties claim occupation and no intent to evict was shown.
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.
The appropriate interim order
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.
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.
Legal principles established
#- 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
#- 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.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.In default of filing the appeal within 90 days, the status quo order to stand lapsed
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.