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Court of AppealAllowedCivil Application E430 of 2021· [2022] KECA 431 (KLR)

Okoth & 18 others (Suing as Owners of Units in Hawi (Apartments on LR No 209/14990/4)) v Jaybinx Investments Ltd & 3 others

Court of Appeal
4 March 2022
961 words in judgment
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The bottom line

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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

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Executive summary

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The applicants, owners of units in the Hawi Apartments on LR No. 209/14990, moved the Court of Appeal under Rule 5(2)(b) of the Court of Appeal Rules for an injunction pending an intended appeal against a ruling of the Environment and Land Court (Komingoi, J.) dated 25 November 2021. That ruling dismissed their application to be joined as parties to ELCC No. 1151 of 2005 and to set aside a consent order of 4 December 2009, which created a 4.5-metre access road through the suit property, entailing demolition of its main gate, guard house, perimeter wall and part of the car park. The applicants asserted they were registered sub-lessees, were never heard in the proceedings, and learned of the consent order only on 14 September 2021. The 1st respondent, though served, did not participate; the 2nd, 3rd and 4th respondents did not oppose the application. Applying the established twin test, the Court found the intended appeal arguable, raising issues of post-judgment joinder, the rights of non-parties affected by consent orders, and delay. It further found the appeal would be rendered nugatory if the demolition or expropriation proceeded. The Court allowed the application and granted an 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 appeal is heard and determined, with costs of the application to abide the appeal's outcome.

Key legal issues

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01

Whether the intended appeal is arguable

Holding

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.

Reasoning

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.

02

Whether the appeal would be rendered nugatory absent an injunction

Holding

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.

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 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. 2.Costs of the application to abide the outcome of the appeal

Authorities

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Legislation

  • Court of Appeal RulesRule 5(2)(b)
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

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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, "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.