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Court of AppealAllowedCivil Application (Rule 5(2)(b)) dated 30th November 2020, arising from intended appeal against ELC No. 345 of 2019 ruling· [2021] KECA 255 (KLR)

Gathuru v Chege & 5 others (Civil Application E374 of 2020) [2021] KECA 255 (KLR)

Court of Appeal
3 December 2021
HOHannah OkwenguFSF. SichaaleJMJ. Mohammed
1,517 words in judgment
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The bottom line

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The Court of Appeal stopped the sale of a Dagoretti property, confirming that Kenyans claiming a share in family land can freeze disposal until their appeal is heard.

What this practically means

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Executive summary

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This is an interlocutory ruling of the Court of Appeal, Nairobi, on a Notice of Motion dated 30th November 2020 brought by Jane Ruguru Gathuru under Rule 5(2)(b) of the Court of Appeal Rules, seeking an interim injunction restraining the 3rd and 4th respondents from selling or disposing of title number DAGORETTI/RIRUTA/1648 pending her intended appeal against a ruling of the Environment and Land Court of 7th October 2020. The High Court had dismissed her application for a temporary injunction, finding no prima facie evidence that the 3rd and 4th defendants were privy to alleged fraudulent activities surrounding the transfer of the property. Before the Court of Appeal, the applicant, a wife of the 1st respondent claiming a beneficial interest in the suit property, argued she had an arguable appeal and that the balance of convenience favoured preservation given the duplicity of titles. The 4th respondent, Co-operative Bank of Kenya Ltd, opposed, relying on its statutory power of sale following default on a Kshs 9,100,000 loan to the 3rd respondent. Applying the settled twin principles from Trust Bank Limited v Investech Bank Limited and Stanley Kang'ethe Kinyanjui v Tony Keter, the Court found the intended appeal arguable - particularly the question of the applicant's beneficial interest - and held that unless restrained, the property would be transferred or charged to third parties, destroying the substratum of the appeal and rendering it nugatory. The application was allowed with costs abiding the outcome of the intended appeal. The decision binds subordinate courts and High Court judges on the Rule 5(2)(b) framework it restates, though it makes no definitive findings on the merits.

Key legal issues

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01

Whether the intended appeal is arguable

Holding

Yes - it is arguable whether the applicant has a beneficial interest in the suit property; a single bona fide arguable ground suffices.

Reasoning

The court applied Stanley Kang'ethe Kinyanjui v Tony Keter, holding that an arguable appeal is one not frivolous and deserving of full argument. It identified the applicant's claim of beneficial interest in the suit property as a bona fide arguable ground, expressly declining to make definitive findings of fact or law lest it embarrass the Bench seized of the main appeal.

p. 3
02

Whether the appeal would be rendered nugatory if the orders are not granted

Holding

Yes - if the orders are not granted the suit property may be transferred or charged to third parties, destroying the substratum of the appeal.

Reasoning

Weighing the conflicting claims of both parties, the court found that without an injunction the 4th respondent could exercise its statutory power of sale and transfer the property, rendering the intended appeal nugatory. The applicant's claim of beneficial interest as spouse and the duplicity of titles tilted the balance towards preservation of the property pending appeal.

p. 4

Legal principles established

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  • An applicant under Rule 5(2)(b) must satisfy the twin principles that the appeal is arguable and that it would be rendered nugatory if the orders sought are not granted; both limbs must be demonstrated.
  • An arguable appeal need not necessarily succeed; a single bona fide arguable ground suffices, and the court must not make definitive findings of fact or law at that stage.

Court orders

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  1. 1.Interim injunction restraining the 3rd and 4th respondents, their agents or whomsoever, from selling or disposing of TITLE NUMBER DAGORETTI/RIRUTA/1648 pending the hearing and determination of the intended appeal
  2. 2.Application dated 30th November 2020 allowed
  3. 3.Costs to abide the outcome of the intended appeal

Authorities

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Legislation

  • Court of Appeal RulesRule 5(2)(b)

Cases cited (2)

  • Trust Bank Limited and Another v. Investech Bank Limited and 3 Others
    [2000] eKLR
  • Stanley Kang’ethe Kinyanjui v Tony Keter & 5 Others
    [2013] eKLR (Civil Application No. Nai. 31 of 2012)
On appeal from
Environment and Land Court
ELC No. 345 of 2019
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, "Gathuru v Chege & 5 others (Civil Application E374 of 2020) [2021] KECA 255 (KLR)", Case Analysis (2021). Civil Application (Rule 5(2)(b)) dated 30th November 2020, arising from intended appeal against ELC No. 345 of 2019 ruling. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/255/eng@2021-12-03

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