Stephen Robert Gitonga Njagi v Charles Ntiritu M’ikunyua & 3 others
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the intended appeal was arguable
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.
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.
Whether the intended appeal would be rendered nugatory if the injunction was not granted
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.
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.
Legal principles established
#- 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
#- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.