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Court of AppealAllowedCivil Application E436 of 2021· [2022] KECA 965 (KLR)

Njogu v Mwangi & 3 others

Court of Appeal
26 August 2022
1,655 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal protected a landowner from eviction, confirming it can grant injunctions even after a lower court has dismissed the case.

What this practically means

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Executive summary

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The applicant, Lucy Wangari Njogu, moved the Court of Appeal under Rule 5(2)(b) of the Court of Appeal Rules seeking an injunction restraining the 3rd respondent from interfering with her possession and occupation of L.R. No. 16217/34 pending an intended appeal against the judgment of the Environment and Land Court (Komingoi, J.) delivered on 14th October 2021 dismissing her suit. Her claim rested on her assertion that she had purchased the property in 1998, transferred it to her husband (the 1st respondent) only as a condition for a bank loan, obtained protective orders in H.C.C.C. No. 3 of 2009 (OS) registered against the title, and that the Registrar of Titles lifted those orders without notice to her, enabling the 2nd respondent to exercise its statutory power of sale and transfer the property to the 3rd respondent. The 2nd respondent opposed, contending the dismissal of the suit below deprived the Court of jurisdiction. The Court held it had jurisdiction because injunctive relief was among the prayers sought; that whether a registered court order could be lifted without notice was a single arguable point sufficient under Rule 5(2)(b); and that eviction or onward transfer would render the appeal nugatory. The Motion dated December 3, 2021 was allowed with an injunction against the 3rd respondent, costs in the intended appeal.

Key legal issues

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01

Jurisdiction under Rule 5(2)(b) where the suit below was dismissed

Holding

The Court has jurisdiction to entertain and grant an injunction pending an intended appeal notwithstanding that the suit in the ELC was dismissed, because one of the prayers sought is injunctive relief.

Reasoning

The 2nd respondent argued that the dismissal of the applicant's suit in the ELC deprived the Court of Appeal of jurisdiction to grant interim relief. The Court rejected this, holding that where the application before it includes a prayer for an injunction against interference with the suit property, jurisdiction exists to entertain the application and to grant positive orders if the applicant is deserving of them.

p. 3
02

Arguability of the intended appeal

Holding

The question whether a court order registered against a title could be lifted by the Registrar without notice to the person who registered it is an arguable point sufficient under Rule 5(2)(b).

Reasoning

The applicant deponed that her court order in H.C.C.C. No. 3 of 2009 (OS) was registered against the title, then lifted by the Registrar without notice, enabling transfer to the 3rd respondent. The Court found this assertion was not seriously challenged and held that whether the order could lawfully be lifted without notice was an arguable point; a single arguable point satisfies the rule.

p. 3
03

Nugatory aspect

Holding

The appeal would be rendered nugatory if the applicant were evicted or the property transferred to third parties.

Reasoning

The 3rd respondent had already sought the applicant's eviction in the ELC following dismissal of her suit. The Court reasoned that the applicant may be evicted and the 3rd respondent may transfer the property to others, putting it beyond her reach, thereby rendering the intended appeal nugatory absent an injunction.

p. 3

Legal principles established

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  • The dismissal of a suit in the court below does not rob the Court of Appeal of jurisdiction under Rule 5(2)(b) to grant an injunction where one of the prayers sought is injunctive relief pending an intended appeal.
  • A single arguable point on appeal suffices to satisfy the first limb of the Rule 5(2)(b) test.
  • A Registrar of Lands is required in law to serve notice on a party who registered a court order against a title before that order is removed to enable transfer of the land.

Court orders

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  1. 1.Injunction restraining the 3rd respondent from interfering with the applicant's possession and occupation of the suit property L.R. No. 16217/34
  2. 2.The Motion dated December 3, 2021 allowed
  3. 3.Costs of the Motion to be in the intended appeal

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 159
  • Court of Appeal RulesRule 5(2)(b)
  • Appellate Jurisdiction ActSection 3A

Cases cited (2)

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

    Summary of principles for injunction pending appeal: arguability and nugatory aspect.

  • Damji Pramji Mandaria v Sarah Lee Household and Body Care (K) Limited
    Civil Application No 345 of 2004 (ur)

    A single arguable point suffices; no need for a multiplicity of arguable points.

On appeal from
Environment and Land Court of Kenya at Nairobi
ELC Cause No. 358 of 2010
Jurisdiction invoked
Article 159 of the Constitution of Kenya, 2010 and 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, "Njogu v Mwangi & 3 others", Case Analysis (2022). Civil Application E436 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/965/eng@2022-08-26

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