Shee & 2 others v Ahmed & another
The bottom line
#Kenya's Court of Appeal blocked the sale of disputed Lamu land until an appeal is heard, because selling it would make winning the appeal pointless.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the applicants' intended appeal is competent, given the requirement that a notice of appeal be lodged within 14 days
- 2.Whether the intended appeal is arguable
- 3.Whether the appeal would be rendered nugatory if the injunction sought is not granted
Key legal issues
#Competence of the application - whether a notice of appeal was lodged in time
The application was competent because the applicants lodged a notice of appeal on October 29, 2020, within 14 days of the judgment, satisfying rule 5(2)(b).
The respondents argued no appeal had been filed and the application was late. The court held that the jurisdictional prerequisite under rule 5(2)(b) is the timely lodging of a notice of appeal, not the filing of the record of appeal. The notice of appeal filed on October 29, 2020 met the requirement, so the respondents' objection failed.
Whether the intended appeal is arguable
The appeal is arguable on the issues of when the cause of action arose and whether the applicants' alleged compensation was proved and documented.
Applying the first limb of the rule 5(2)(b) test, the court found that the respondents' limitation argument as to when the cause of action arose, and the question whether the applicants were compensated for the land absorbed into the respondents' parcel, raised arguable issues warranting determination on appeal.
Whether the appeal would be rendered nugatory without an injunction
The nugatory principle was satisfied because the subject matter is land which, if disposed of, may be out of the applicants' reach if the appeal succeeds.
The court recognised that the suit property is land and that the respondents were moving to remove the caution and dispose of it. If the land changed hands and the appeal succeeded, the applicants could not recover it, so preservation of the subject matter was imperative and an injunction was warranted.
Legal principles established
#- An applicant under rule 5(2)(b) must satisfy the twin principles of an arguable appeal and that the appeal would be rendered nugatory absent the order.
- The Court of Appeal's jurisdiction under rule 5(2)(b) is contingent on a notice of appeal having been lodged within 14 days of the judgment.
- Where land may change hands pending appeal, an injunction may issue to preserve the substratum of the appeal.
Court orders
#- 1.The application dated July 13, 2021 is granted in terms of prayer 2
- 2.An injunction restraining the respondents from disposing, subdividing, alienating, leasing, sub-leasing, charging, transferring and/or wasting parcel Lamu/Hindi/Magogoni/526 pending hearing and determination of the applicants' appeal
- 3.The applicants shall file a competent appeal within 45 days from the date of the ruling, failing which the injunction shall stand discharged
- 4.Dates for the hearing of the appeal to be fixed at the registry
- 5.The costs of the application shall abide the outcome of the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Environment and Land Court at Malindi
- ELC Case No. 118 of 2014
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Firstly, an applicant has to satisfy that he or she has an arguable appeal. Secondly, an applicant has to demonstrate that unless an order of stay is granted the appeal or intended appeal would be rendered nugatory.
This court's jurisdiction to stay judgment is contingent on a notice of appeal having been filed against the said judgment within 14 days of the date of its delivery
The application dated July 13, 2021 is granted in terms of prayer 2;
The applicants shall file a competent appeal within 45 days from the date of this ruling, and in default the injunction granted herein shall stand discharged.
The costs of the application shall abide the outcome of the appeal.
Issues in the judgment
#Coram spells the third judge's surname 'LESSIT' while the signature block reads 'LESIIT'.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Shee & 2 others v Ahmed & another", Case Analysis (2022). Civil Application 50 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1282/eng@2022-11-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.