Law Society of Kenya v Kinyua & 7 others
The bottom line
#The Court of Appeal refused to block the transfer of Kenyatta University land pending appeal, ruling any loss could be compensated with money.
What this practically means
#Executive summary
#Key legal issues
#Whether the intended appeal was arguable
Yes - grounds on public participation and the tenure of the suit property (public or private, and whether subdivision amounted to compensable compulsory acquisition) sufficed.
The court applied the settled rule that an arguable appeal need not succeed but must not be idle or frivolous. Grounds touching on public participation and the nature of the University's tenure, and whether the excision amounted to compulsory acquisition attracting compensation, raised bona fide issues deserving consideration, satisfying the first limb of the twin principle.
Whether the appeal would be rendered nugatory absent an injunction
No - any loss from misdealing with the land is capable of compensation by damages, and the court can reverse a transfer of title should the appeal succeed.
Applying Esso Kenya Ltd v Mark Makwata Okiya, where damages are an adequate remedy injunction is unavailable. The applicant failed to show the loss could not be so remedied; further, should the title change hands, the Court of Appeal has power to reverse the transfer if the appeal succeeds, so the substratum would not be obliterated.
Legal principles established
#- The same principles govern applications for injunction, stay of execution or stay of proceedings pending appeal under rule 5(2)(b): the applicant must establish an arguable appeal and that the appeal would be rendered nugatory.
- An arguable appeal need not succeed; it suffices that it is not idle or frivolous and merits consideration.
- Where loss can be compensated by an award of damages, the equitable relief of injunction is not available.
- Factors rendering an appeal nugatory are considered in the circumstances of each case, weighing the conflicting claims of both sides.
Court orders
#- 1.The application dated August 18, 2022 for injunction pending appeal is dismissed
- 2.Each party to bear their own costs, this being a public litigation
- On appeal from
- Environment & Land Court of Kenya at Nairobi
- ELC Cause No E029 of 2022
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules 2010 (injunction pending appeal)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Law Society of Kenya v Kinyua & 7 others", Case Analysis (2022). Civil Application E301 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1135/eng@2022-10-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.