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Court of AppealDismissedCivil Application E070 & E074 of 2021 (Consolidated)· [2022] KECA 652 (KLR)

Gathambo (Suing as Legal Representative of the Estate of Gathambo Gacheche - Deceased) v Gacheche (Sued as the Administrators of the Estate of Gacheche Hosea (Deceased) & 2 others

Court of Appeal
8 July 2022
DMD.K. MusingaAMA.K. MurgorSKS. ole Kantai
1,556 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to stop land dispute proceedings, ruling the same family land fight had already been fully decided in earlier court cases.

What this practically means

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Executive summary

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This consolidated ruling of the Court of Appeal at Nyeri (D.K. Musinga, A.K. Murgor and S. ole Kantai, JJA) disposed of two applications (E070 and E074 of 2021) by Alice Nyakinyua Gathambo seeking a temporary injunction and stay of orders of the Environment and Land Court at Nyeri (Angima, J.) dated 28th July, 2021. The ELC had upheld a preliminary objection that the applicant's originating summons - seeking rectification of the register for land parcel Kirimukuyu/Kiria/638 and cancellation of entries transferring it to Andrew Gathambo Gacheche - was res judicata, having been directly and substantially in issue in Nairobi High Court Succession Cause No. 1869 of 1999 and Nyeri CMCC No. 196 of 2018. The originating summons was struck out as incompetent. Applying the well-known rule 5(2)(b) principles from Stanley Kangethe Kinyanjui v Tony Ketter & 5 Others [2013] eKLR, the Court found no arguable point in the intended appeal, the prior succession and magistrate's causes having been heard on merits; it declined to address the nugatory limb but observed in passing that completed demolition of the kitchen and removal of the rooftop could not ground rule 5(2)(b) relief. Agreeing with the respondents, the Court further held it has no jurisdiction in applications of this nature to quash High Court orders. Both motions were dismissed with no order as to costs - each party bearing their own costs given the history of the matter.

Key legal issues

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01

Arguability of the intended appeal

Holding

The intended appeal was not arguable because the same issue relating to the suit property had already been heard and determined on merits in the Nairobi succession cause and before the Chief Magistrate at Nyeri

Reasoning

The ELC judge found the parties and the issue in dispute identical to those in the prior succession cause and the magistrate's case, which had been heard and determined. The suit was therefore res judicata and the originating summons struck out. On those premises the Court could discern no arguable point in the intended appeal, so the first limb of the rule 5(2)(b) test failed and the nugatory limb need not be addressed.

p. 3
02

Jurisdiction to quash High Court orders

Holding

The Court of Appeal lacks jurisdiction, in applications of this nature, to quash orders of the High Court as invited by the applicant

Reasoning

The applicant's motions sought, in substance, to quash the ELC orders upholding the preliminary objection and striking out the originating summons. Agreeing with the respondents' counsel, the Court held that it has no such jurisdiction in applications of this nature; the proper course is an appeal, not quashing. Both motions therefore failed and were dismissed.

p. 3

Legal principles established

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  • An applicant for stay pending appeal or injunction under rule 5(2)(b) must show the appeal is arguable (not frivolous) and that, if successful, it would be rendered nugatory absent stay
  • The Court of Appeal has no jurisdiction, in applications of this nature, to quash orders of the High Court
  • Completed demolition or removal of structures cannot ground relief under rule 5(2)(b) pending appeal

Court orders

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  1. 1.Both motions (Civil Applications E070 and E074 of 2021) dismissed
  2. 2.Each party to bear their own costs considering the history of the matter

Authorities

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Legislation

  • Court of Appeal RulesRule 5(2)(b)
  • Court of Appeal RulesRule 40(b)
  • Court of Appeal RulesRule 47(5)
  • High Court (Practice and Procedure) (Jurisdiction) Act Cap 9Rule 20(1)(3)

Cases cited (1)

  • Stanley Kangethe Kinyanjui v Tony Ketter & 5 Others
    [2013] eKLR

    Principles governing applications for stay pending appeal or injunction: arguability and nugatory-ness

On appeal from
Environment and Land Court of Kenya at Nyeri
ELC Cause No. 17 of 2019
Jurisdiction invoked
Rules 5(2)(b), 40(b) and 47(5) of the Court of Appeal Rules (applications for stay/injunction pending 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, "Gathambo (Suing as Legal Representative of the Estate of Gathambo Gacheche - Deceased) v Gacheche (Sued as the Administrators of the Estate of Gacheche Hosea (Deceased) & 2 others", Case Analysis (2022). Civil Application E070 & E074 of 2021 (Consolidated). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/652/eng@2022-07-08

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