Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealDismissedCivil Application No. 208 of 2020

Zephan Kareithi & Co. Ltd & another v Jack Kaguu Githae [2021] KECA 751 (KLR)

Court of Appeal
19 March 2021
Martha Karambu KoomeM.K. KoomeKMK. M'inotiAMA.K. Murgor
616 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~2 min to read original · ~4 min brief

The bottom line

#

Kenya's Court of Appeal refused to stop a burial already done, ruling that applications overtaken by events are academic and will be dismissed.

What this practically means

#

Executive summary

#
This was an interlocutory application in the Court of Appeal at Nyeri by Zephan Kareithi & Co. Ltd and Tabitha Wanjiku Kareithi, applicants in an intended appeal against the judgment of Waithaka, J. of the Environment and Land Court at Nyeri delivered on 18th February 2019 in ELC Case No. 38 of 2014. The trial court had found that the respondent, Jack Kaguu Githae, had acquired the suit land, Aguthi/Gatitu 667/101, through adverse possession, which formed an overriding interest against the applicants' title. By a Notice of Motion dated 14th September 2020, the applicants sought an injunction to restrain the respondent from burying his wife, Ann Wanjiru Githae, on the subject land on 15th September 2020, from cutting eucalyptus trees or causing wastage, and for police security, pending the hearing of appeal No. 208 of 2019. The respondent filed no replying affidavit or submissions. By the time of the hearing, the scheduled burial date had long passed, and the applicants, though obliged to do so after being served with a hearing notice on 25th February 2021, filed no affidavit updating the court on the status of the application. The court held that in the absence of evidence that the burial did not take place as scheduled, the application was academic and overtaken by events, and that courts do not issue orders based on speculation or guesswork. The motion was dismissed with costs in the appeal. The intended appeal itself remains pending and was not determined by this ruling.

Key legal issues

#
01

Whether an interlocutory application for injunction pending appeal survives when the event sought to be restrained has occurred

Holding

The application was dismissed because the burial date had long passed and the applicants, though obliged, filed no affidavit updating the court on the current status of the application.

Reasoning

The motion sought to stop a burial scheduled for 15th September 2020, a date which by the time of hearing was long past. The applicants were served with a hearing notice on 25th February 2021 and were obliged to file an affidavit updating the court on the status of the application, but did not. Without evidence that the burial did not take place, the court could only speculate. Courts do not grant relief on speculation, so the application lacked merit and was dismissed with costs.

p. 2

Legal principles established

#
  • The Court will not issue orders, including interlocutory injunctive orders, on the basis of speculation or guesswork; a party seeking relief must establish facts showing the relief is still live and capable of being granted.
  • An application whose subject matter has been overtaken by events, and which the applicant has not updated with evidence of current status, is academic and must be dismissed.

Court orders

#
  1. 1.Dismissal of the Notice of Motion dated 14th September 2020
  2. 2.Costs in the appeal
On appeal from
Environment and Land Court at Nyeri
ELC Case No. 38 of 2014
Jurisdiction invoked
Appellate jurisdiction of the Court of Appeal over the Environment and Land Court, by way of an intended appeal from the judgment of Waithaka, J., with an interlocutory application for injunction pending appeal

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (1)

#

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

Cite this brief

#

Cite this brief

Caselaw, "Zephan Kareithi & Co. Ltd & another v Jack Kaguu Githae [2021] KECA 751 (KLR)", Case Analysis (2021). Civil Application No. 208 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/751/eng@2021-03-19

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