Karomo & another v Kiagi & another
The bottom line
#Kenya's Court of Appeal refused to stop a nearly finished Mombasa building, even though the appeal itself was found arguable.
What this practically means
#Executive summary
#Key legal issues
#Whether the intended appeal was arguable
The appeal was arguable on the single ground that the applicants were referred to a non-existent forum (the Mombasa County Physical and Land Use Planning Liaison Committee).
The court applied the twin principles from Trust Bank v Investech and Kinyanjui v Ketter. It held that the contention that the statutory avenue for redress does not exist, and that the applicants were referred to that non-existent entity, was sufficient to satisfy the arguability limb without making definitive findings.
Whether the intended appeal would be rendered nugatory absent the injunction
The nugatory limb failed: at 90% completion with 80% of apartments sold off plan, the 1st respondent would suffer greater prejudice not compensable by damages, and he assumes the risk of any ultimate demolition order.
The court weighed the prejudice on both sides. Given the advanced stage of construction, the costs incurred and third-party sales, stopping the construction would cause the 1st respondent greater loss than damages could compensate. The court declined to halt an almost-complete development, noting the 1st respondent bears the risk if demolition is ultimately ordered.
Legal principles established
#- To succeed under Rule 5(2)(b), an applicant must show the appeal or intended appeal is arguable and that, if successful, it would be rendered nugatory absent the orders sought.
- A single bona fide arguable ground suffices; an arguable appeal need not necessarily succeed, and the court must not make definitive findings of fact or law at that stage.
- Whether an appeal will be rendered nugatory depends on whether what is sought to be stayed is reversible, or whether damages will reasonably compensate the aggrieved party.
Court orders
#- 1.The application for injunction pending appeal is dismissed
- 2.Costs to abide the outcome of the appeal
- On appeal from
- Environment and Land Court at Mombasa
- ELC Case No. 227 of 2020
- 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, "Karomo & another v Kiagi & another", Case Analysis (2022). Civil Application E013 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1216/eng@2022-11-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.