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Court of AppealDismissedCivil Application No. NYR 97 of 2020· [2021] KECA 839 (KLR)

Alex Tony Gitonga Njeru & 19 others v County Government of Embu

Court of Appeal of Kenya
19 March 2021
1,200 words in judgment
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The bottom line

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The Court of Appeal refused to freeze land dealings during an appeal because the applicants feared a sale without any actual evidence one was happening.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal (Koome, M'inoti and Murgor, JJ.A.) on a rule 5(2)(b) application by twenty applicants seeking an order prohibiting dealings in, and maintenance of the status quo over, LR No. Gaturi/Nambure 3072 pending the hearing of their appeal (Civil Appeal No. 92 of 2020) against the Environment and Land Court at Embu (Angima, J.), which on 5th May 2020 dismissed their originating summons claiming the property was held in trust for the Muthiga Clan. The ELC had held the suit res judicata on account of prior litigation, including the Nyeri suit and Embu HCCC No. 14 of 2004, and found the summons scandalous and an abuse of process. Applying the twin principles from Githunguri v. Jimba Credit Corporation, the court held the intended appeal arguable - it raised bona fide issues, notably whether the applicants, who were not parties to the Nyeri suit, were bound by res judicata. However, the nugatory limb failed: the applicants' claim of danger of alienation rested on conjecture and bare affidavit allegations, unsupported by any positive averment that the 2nd to 13th respondents were disposing of the property. Notably, the 1st respondent, the County Government of Embu, supported the application. The court reiterated that it cannot issue orders on unevidenced supposition, and dismissed the application with costs to the 2nd to 13th respondents.

Key legal issues

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01

Whether the intended appeal was arguable

Holding

Yes. The applicants raised bona fide issues, including whether their suit was res judicata when they were not parties to the Nyeri suit, sufficient to establish arguability.

Reasoning

Applying the settled test that an arguable appeal is one that is not frivolous and raises even a single bona fide issue, the court found the applicants' proposed grounds - notably that they were strangers to the Nyeri suit and thus not bound by it - were not frivolous and deserved full consideration at the hearing of the appeal.

p. 3
02

Whether the intended appeal would be rendered nugatory absent the orders

Holding

No. The claim of danger of alienation rested on conjecture and supposition, with no positive averment that the 2nd to 13th respondents were disposing of the property.

Reasoning

The court held that transfer of property to a party's name can be undone and is not of itself evidence of an intention to sell to third parties. The supporting affidavit contained only bare allegations of danger of alienation without any factual foundation, and the court cannot act on unevidenced supposition. The second limb of the rule 5(2)(b) test therefore failed, dooming the application regardless of arguability.

p. 3

Legal principles established

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  • To obtain relief under rule 5(2)(b), an applicant must establish both that the intended appeal is arguable and that it will be rendered nugatory unless the orders are granted; satisfaction of only one limb is insufficient.
  • An arguable appeal need not succeed nor raise a multiplicity of issues; it suffices that it is not frivolous and raises even a single bona fide issue.
  • Courts cannot grant orders, including rule 5(2)(b) relief, on the basis of unevidenced supposition; the nugatory requirement must be grounded on evidence.

Court orders

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  1. 1.The application for maintenance of status quo pending the hearing and determination of the appeal was dismissed
On appeal from
Environment and Land Court of Kenya at Embu
ELCC No. 332 of 2015 (O.S); appeal filed as Civil Appeal No. 92 of 2020
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules (application for orders pending the hearing and determination of an 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, "Alex Tony Gitonga Njeru & 19 others v County Government of Embu", Case Analysis (2021). Civil Application No. NYR 97 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/839/eng@2021-03-19

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