Morijo-Loita Residents Association & 558 others v Narok South Land Adjudication & Settlement Officer & 2 others
The bottom line
#The Court of Appeal refused to halt a Narok land adjudication, confirming that appeals cannot stop processes unless stopping them is truly necessary.
What this practically means
#Executive summary
#Key legal issues
#Arguability of the intended appeal
The grounds in the draft Memorandum of Appeal were arguable, satisfying the first limb of the Rule 5(2)(b) test.
The Court identified the applicants' grievances as revolving around the alleged breach of the right of access to information under Article 35, the alleged exclusion of public participation in appointing the Adjudication Committee, and the alleged failure to submit to the statutory dispute resolution mechanism under the Land Adjudication Act. On that basis the Court found the grounds not idle and arguable, though success remained subject to the second limb.
Stay of execution of a negative order
Stay of execution cannot issue in respect of the ELC Ruling because it is a negative order dismissing the applicants' Motion, incapable of execution.
Relying on Co-operative Bank of Kenya Limited v Banking Insurance & Finance Union (Kenya) and Executive Estates Limited v Kenya Posts, the Court reiterated that negative orders - orders incapable of execution - cannot be stayed. The ELC Ruling merely dismissed the applicants' interlocutory Motion, so the prayer for stay of execution necessarily failed.
Nugatory-impact limb and injunctive relief
Denial of the injunction and stay would not render the intended appeal nugatory; the second limb was not satisfied and the Motion failed.
The Court distinguished the applicants' constitutional right of access to information under Article 35 from their individual rights and obligations under the Land Adjudication Act. Since counsel conceded the applicants were pursuing both processes and submitting to the adjudication, restraining the adjudication was unjustified. The Court also held it in the public interest that adjudication proceed to its logical conclusion.
Legal principles established
#- To obtain orders under Rule 5(2)(b), an applicant must satisfy both the arguability and the nugatory-impact limbs; satisfying only one is insufficient.
- An order dismissing an application is a negative order incapable of execution, and no stay of execution can issue in respect of it.
- An applicant under Rule 5(2)(b) need only demonstrate one arguable point, and need not show that the point will succeed.
Court orders
#- 1.The applicants' notice of motion dated May 27, 2022 is dismissed
- 2.No orders as to costs
- On appeal from
- Environment and Land Court at Narok
- E.L.C Petition No. E002 of 2021
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Morijo-Loita Residents Association & 558 others v Narok South Land Adjudication & Settlement Officer & 2 others", Case Analysis (2022). Civil Application 184 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1143/eng@2022-10-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.