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Court of AppealDismissedCivil Appeal (Application) E177 of 2021· [2022] KECA 1026 (KLR)

Chesire & 2 others v Kwambai & 7 others

Court of Appeal
23 September 2022
2,727 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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The Court of Appeal refused to protect Kenyan land buyers with an extra injunction because existing court orders already shielded the property during the ongoing case.

What this practically means

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Executive summary

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The applicants, who have been in occupation of the suit properties since 1984 according to their assertion, applied to the Court of Appeal under Rule 5(2)(b) of the Court of Appeal Rules 2010 for a temporary injunction restraining the respondents from trespassing on, cultivating, constructing on, fencing, subdividing, selling or otherwise dealing with Kiplombe/Kiplombe/Block 10 (Growel) 44, 45 and 310 pending their intended appeal against a ruling of the Environment and Land Court at Eldoret (Kibunja J) dated December 15, 2021. That ruling dismissed the applicants' contempt applications, finding that the alleged status quo order of May 29, 2009 had lapsed after twelve months under Order 40 Rule 6 of the Civil Procedure Rules and that no valid order existed. The Court of Appeal accepted that the challenge to that finding may well be arguable, but held that the applicants failed the second limb of the Rule 5(2)(b) test. The trial court, while declining to find contempt of the 2009 order, had found the 1st respondent in breach of the lis pendens doctrine for subdividing and selling parcels during the suit, fined him Kshs. 200,000, directed the Land Registrar to rectify the register by cancelling post-2009 transfers, and issued an inhibition over all parcels subdivided from parcel 44 until the suit is determined. Those orders already protect the subject land in a partly-heard suit, so the appeal would not be rendered nugatory. The application was dismissed with costs abiding the outcome of the intended appeal.

Key legal issues

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01

Whether the intended appeal is arguable

Holding

The court found the question whether the trial court erred in holding that the May 29, 2009 order had lapsed and that no valid status quo order existed may well be arguable

Reasoning

The trial court dismissed the contempt applications on the basis that the May 29, 2009 ex parte order lapsed after 12 months under Order 40 Rule 6 of the Civil Procedure Rules and that no valid order was proved. The court accepted that challenging this finding could be an arguable point, but that alone does not suffice.

p. 4
02

Whether the appeal would be rendered nugatory without the injunction

Holding

The applicants failed the nugatory limb because the trial court had already issued protective orders, including rectification of the register and an inhibition under section 68 of the Land Registration Act framework, protecting the suit land

Reasoning

Although the trial court found no valid status quo order for contempt purposes, it punished the 1st respondent for breach of lis pendens, fined him Kshs. 200,000, directed rectification of the register cancelling post-2009 transfers, and issued an inhibition over all parcels subdivided from parcel 44 until the suit is determined. These orders preserve the substratum of the suit, so the appeal would not be rendered nugatory.

p. 5

Legal principles established

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  • An applicant under Rule 5(2)(b) must satisfy the twin tests of an arguable appeal and that the appeal will be rendered nugatory if the orders sought are not granted
  • Whether an appeal will be rendered nugatory depends on whether what is sought to be stayed is reversible, or if not, whether damages will reasonably compensate the aggrieved party
  • Where the trial court's own orders already protect the subject matter of the suit, an applicant for injunction pending appeal cannot show the appeal will be rendered nugatory

Court orders

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  1. 1.The application dated December 22, 2021 is dismissed
  2. 2.Costs shall abide the outcome of the intended appeal

Authorities

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Legislation

  • Court of Appeal Rules 2010Rules 1(2), 5(2)(b), 20, 42, 43, 53, 75
  • Civil Procedure RulesOrder 40 Rule 6
  • Land Registration Act No. 3 of 2012section 80
  • Registration of Land Act No. 3 of 2012section 68

Cases cited (4)

  • Giella vs Cassman Brown & Company Ltd
    (1973) EA 358

    Injunctive relief as an equitable remedy granted at the discretion of the court

  • Stanley Kangethe Kinyanjui vs. Tony Ketter & Others
    [2013] eKLR

    Twin conditions for relief under Rule 5(2)(b): arguable appeal and nugatory aspect

  • University of Nairobi v Ricatti Business of East Africa
    [2020] eKLR

    Test for whether an appeal will be rendered nugatory

  • Nelson Andai Havi vs Law Society of Kenya & 3 others
    [2018] eKLR

    Nugatory aspect test

On appeal from
Environment and Land Court, Eldoret
ELC Case No. 520 of 2012
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules 2010

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, "Chesire & 2 others v Kwambai & 7 others", Case Analysis (2022). Civil Appeal (Application) E177 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1026/eng@2022-09-23

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