Chesire & 2 others v Kwambai & 7 others
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the intended appeal is arguable
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
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.
Whether the appeal would be rendered nugatory without the injunction
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
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.
Legal principles established
#- 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
#- 1.The application dated December 22, 2021 is dismissed
- 2.Costs shall abide the outcome of the intended appeal
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.