Okoth & 18 others (Suing as Owners of Units in Hawi (Apartments on LR No 209/14990/4)) v Jaybinx Investments Ltd & 3 others
The bottom line
#Kenya's Court of Appeal protected apartment owners from demolition of their property's gate, wall and parking pending their appeal against a consent order they never knew about.
What this practically means
#Executive summary
#Key legal issues
#Whether the intended appeal is arguable
The Court was satisfied the appeal is not frivolous and is arguable, raising issues including joinder post-judgment, the rights of non-parties affected by a consent order, and delay.
The applicants contended the judge erred in refusing joinder and setting aside of a consent order that adversely affected non-parties. The Court found these issues merited full consideration, satisfying the arguability limb of the Rule 5(2)(b) test without deciding the merits.
Whether the appeal would be rendered nugatory absent an injunction
The nugatory limb was satisfied because demolition of the main gate, guard house, perimeter wall and part of the car park, or expropriation to a third party, would render a successful appeal nugatory.
The Court reasoned that if the respondents executed the consent decree before the appeal was heard, the physical demolition and transfer of parts of the property could not be undone, making a successful appeal futile. Preservation of the status quo was therefore necessary pending the appeal.
Legal principles established
#- An appeal is arguable where it raises issues that deserve full consideration by the Court, and an injunction under Rule 5(2)(b) will issue where the appeal would be rendered nugatory if the status quo is not preserved.
Court orders
#- 1.An order of injunction restraining the respondents from interfering with the applicants' possession, occupation or enjoyment of the suit property on the basis of the impugned consent judgment, until the hearing and determination of the appeal
- 2.Costs of the application to abide the outcome of the appeal
- On appeal from
- Environment and Land Court at Nairobi
- ELCC No. 1151 of 2005
- 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, "Okoth & 18 others (Suing as Owners of Units in Hawi (Apartments on LR No 209/14990/4)) v Jaybinx Investments Ltd & 3 others", Case Analysis (2022). Civil Application E430 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/431/eng@2022-03-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.