Njogu v Mwangi & 3 others
The bottom line
#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
#Executive summary
#Key legal issues
#Jurisdiction under Rule 5(2)(b) where the suit below was dismissed
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.
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.
Arguability of the intended appeal
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).
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.
Nugatory aspect
The appeal would be rendered nugatory if the applicant were evicted or the property transferred to third parties.
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.
Legal principles established
#- 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
#- 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.The Motion dated December 3, 2021 allowed
- 3.Costs of the Motion to be in the intended appeal
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.