Alex Tony Gitonga Njeru & 19 others v County Government of Embu
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the intended appeal was arguable
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.
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.
Whether the intended appeal would be rendered nugatory absent the orders
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.
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.
Legal principles established
#- 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
#- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.