Hon. Fatuma Adan Dullo & 4 others v Cabinet Secretary Lands & Physical Planning & 1 other
The bottom line
#The Court of Appeal refused to stop community land adjudication in Isiolo County, finding the applicants did not meet the strict two-part test for injunctions pending appeal.
What this practically means
#Executive summary
#Key legal issues
#Whether the applicants met the twin test for an injunction pending appeal under rule 5(2)(b)
The application was dismissed because the applicants failed to satisfy the twin test of arguability and nugatory-ness; the court was not persuaded the learned judge misdirected herself in declining conservatory orders.
The court reiterated that an applicant must show the intended appeal is arguable and that it would be rendered nugatory without the injunction. The applicants were attacking an exercise of judicial discretion, which the Court of Appeal does not readily disturb; they had to demonstrate misapplication of the conservatory-order principles. The court found they would be hard-pressed to show the judge acted other than judiciously, and that public interest, hardship and balance of convenience did not favour stopping the adjudication.
Legal principles established
#- An applicant for an injunction under rule 5(2)(b) of the Court of Appeal Rules must first show the intended appeal is arguable, and second that it will be rendered nugatory unless the injunction is granted.
- An appellate court does not readily interfere with the exercise of discretion by a superior court; a party challenging conservatory orders must demonstrate misapplication of the principles governing them.
- Whether an appeal will be rendered nugatory is to be assessed in light of the wider public interest, the respective hardships of the parties, and the balance of convenience.
Court orders
#- 1.The application for injunction pending appeal is dismissed
- 2.Costs to abide the outcome of the intended appeal
- On appeal from
- Environment and Land Court of Kenya at Meru
- ELC. Pet No. 28 of 2019
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Hon. Fatuma Adan Dullo & 4 others v Cabinet Secretary Lands & Physical Planning & 1 other", Case Analysis (2021). Civil Application No. NYR 121 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/766/eng@2021-03-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.