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Court of AppealDismissedCivil Application No. NYR 157 of 2018· [2021] KECA 823 (KLR)

Stephen Robert Gitonga Njagi v Charles Ntiritu M’ikunyua & 3 others

Court of Appeal
19 March 2021
788 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to preserve disputed land pending appeal because the landowner showed only speculation, not evidence, that the appeal would be pointless without an injunction.

What this practically means

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Executive summary

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This was a single-judge-free ruling of a three-judge bench of the Court of Appeal at Nyeri on a motion dated 31st December 2018 by Stephen Robert Gitonga Njagi seeking an injunction to restrain the four M'Ikunyua respondents from interfering with the suit property Kiirua/Naari/1178 pending the hearing and determination of an intended appeal against the judgment of the Environment and Land Court at Meru (Cherono, J.) dated 14th June 2018 in ELCC No. 26 of 2011. By that judgment the learned judge awarded the suit property to the respondents on the basis that they had acquired title by adverse possession, rejecting the applicant's defence that his late mother purchased the property in 1980 and permitted the respondents to use it for subsistence farming, so that their occupation was permissive rather than adverse. The Court applied the twin principles governing rule 5(2)(b) applications. It held the intended appeal arguable, since it raised bona fide issues as to whether the respondents' occupation was adverse and whether the judge disregarded letters evidencing permissive occupation. However, the Court found the nugatory limb unsatisfied: the applicant's fear that the respondents would sell the property was unsupported by evidence, the respondents had lived on and substantially developed the land, and any transfer could readily be undone if the appeal succeeded. Emphasizing that relief will not be granted on speculation and that an applicant must satisfy both limbs, the Court dismissed the application with costs to the respondents.

Key legal issues

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01

Whether the intended appeal was arguable

Holding

The Court was satisfied that the issues the applicant intended to urge were not frivolous and the intended appeal was arguable, but that alone did not warrant the grant of the injunction.

Reasoning

The Court applied the settled standard that an arguable appeal is not one that must necessarily succeed; it is enough that it raises even one bona fide issue warranting full consideration. The applicant's grounds - that the judge erred in finding the respondents' occupation adverse and disregarded letters showing permissive occupation - raised bona fide issues. This is only the first limb of the rule 5(2)(b) test.

p. 2
02

Whether the intended appeal would be rendered nugatory if the injunction was not granted

Holding

The applicant failed to satisfy the nugatory limb; his fear that the property would be sold was speculation with no evidentiary basis, and any transfer could be reversed if the appeal succeeded.

Reasoning

The Court found the applicant's apprehension was a bare 'fear' whose basis was not disclosed. There was no evidence the respondents intended to sell or transfer the property; rather, they had lived on and substantially developed it for a long time. Transfer of the property into their names could easily be undone on a successful appeal, and transfer is not ipso facto evidence of an intention to sell to third parties.

p. 2

Legal principles established

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  • An applicant under rule 5(2)(b) must satisfy both the arguability and the nugatory-ness limbs; satisfying only one is insufficient.
  • An arguable appeal need not necessarily succeed; it suffices that it raises even one bona fide issue for the Court to consider.
  • Relief under rule 5(2)(b) cannot be granted on speculation; the nugatory limb must be supported by evidence, and the non-suiting of a respondent does not relieve the applicant of his burden.

Court orders

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  1. 1.The application dated 31st December 2018 is dismissed with costs to the respondents
On appeal from
Environment and Land Court of Kenya at Meru
ELCC No. 26 of 2011
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules - application for injunction pending the hearing and determination of an intended appeal

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, "Stephen Robert Gitonga Njagi v Charles Ntiritu M’ikunyua & 3 others", Case Analysis (2021). Civil Application No. NYR 157 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/823/eng@2021-03-19

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