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Court of AppealDismissedCivil Appeal (Application) No. 5 of 2021· [2021] KECA 469 (KLR)

Almer Farm Limited v The National Land Commission & 2 others

Court of Appeal
9 July 2021
RNR.N. NambuyeHOHannah OkwenguSKS. ole Kantai
1,030 words in judgment
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The bottom line

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The Court of Appeal dismissed Almer Farm's bid to halt the excision of 400 acres, because it used the wrong legal procedure instead of the required 28-day appeal.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Eldoret (Nambuye, Okwengu and Kantai, JJ.A.) on a Notice of Motion by Almer Farm Limited brought under rules 5(2)(b), 41, 42 and 47 of the Court of Appeal Rules. The applicant sought conservatory orders and injunctions restraining the Chief Land Registrar and the 3rd respondent from acting on a determination of the National Land Commission of 7th February 2019, gazetted on 1st March 2019, under which 400 acres were to be excised from the applicant's parcel L.R. No. 8940 (measuring approximately 1198 acres with over 306 shareholders) and allocated to the 3rd respondent as executrix of the estate of the late David Rono. The orders were sought pending the hearing of Eldoret Civil Appeal No. E015 of 2021, challenging the decision of Mwangi Njoroge, J. of the Environment and Land Court at Kitale who, on 1st December 2020, struck out the applicant's Motion on the basis that judicial review was not the appeal contemplated by Regulation 29 of the National Land Commission (Investigation of Historical Injustices) Regulations, which required an aggrieved person to appeal to court within 28 days. Applying the principles in Stanley Kangethe Kinyanjui v Tony Ketter, the court held that the intended appeal disclosed no arguable point: the applicant had submitted to the NLC's jurisdiction and, contrary to the prescribed procedure, pursued judicial review instead of the statutory appeal, contrary to the Karume principle that prescribed procedures must be strictly followed. Having failed on arguability, the court did not consider the nugatory limb. The Motion was dismissed with costs to the 3rd respondent.

Key legal issues

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01

Arguability of the intended appeal against the striking out of the applicant's Motion before the ELC

Holding

The intended appeal is not arguable; the ELC Judge was right that judicial review was not the appeal contemplated by Regulation 29 of the NLC (Investigation of Historical Injustices) Regulations.

Reasoning

The applicant had submitted to the NLC's jurisdiction; proceedings were conducted and a decision gazetted under the law creating the NLC. Regulation 29 required an aggrieved person to file an appeal within 28 days. The applicant did not do so, instead instituting judicial review, contrary to the prescribed procedure. Following the Karume principle, the prescribed procedure had to be strictly followed, leaving no arguable point.

p. 2
02

The nugatory prong of the rule 5(2)(b) test

Holding

Having found no arguable point, the court did not need to address whether the appeal would be rendered nugatory.

Reasoning

Under the established two-limb test, arguability is considered first; where the applicant fails on the first limb, the court need not consider the second. The court accordingly declined to assess the nugatory-ness of the intended appeal.

p. 2

Legal principles established

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  • Where there is a clear procedure for redress of a particular grievance prescribed by the Constitution or an Act of Parliament, that procedure must be strictly followed.
  • An applicant under rule 5(2)(b) must first demonstrate that the intended appeal is arguable (not frivolous) and, in addition, that it would be rendered nugatory absent stay.

Court orders

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  1. 1.The Motion is dismissed
  2. 2.Costs of the Motion to the 3rd respondent
On appeal from
Environment and Land Court of Kenya at Kitale
ELC Cause No. 4 of 2019
Jurisdiction invoked
Rules 5(2)(b), 41, 42 and 47 of the Court of Appeal Rules (application for injunction/conservatory orders pending appeal)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Almer Farm Limited v The National Land Commission & 2 others", Case Analysis (2021). Civil Appeal (Application) No. 5 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/469/eng@2021-07-09

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