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Court of AppealAllowedCivil Application 50 of 2021

Shee & 2 others v Ahmed & another

Court of Appeal
18 November 2022
1,582 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The applicants, whose suit claiming an interest in part of parcel Lamu/Hindi/Magogoni/526 was dismissed by the Environment and Land Court at Malindi (Olola, J.) on 15 October 2020, applied under rule 5(2)(b) of the Court of Appeal Rules for an injunction restraining the respondents from disposing of, subdividing, alienating, leasing, charging or transferring the suit property pending their intended appeal. They alleged the 1st respondent misused his influence during adjudication to absorb their land into his parcel, and that the respondents were moving to remove a caution and sell the land. The respondents opposed, arguing the application was filed some nine months after judgment, that no appeal had been filed, that the claim was statute-barred under section 7 of the Limitation of Actions Act, and that the applicants had been compensated. The court applied the settled twin principles in Stanley Kangethe Kinyanjui v Tony Ketter: arguability and nugatory-ness. It held the application was competent because a notice of appeal was lodged on 29 October 2020 within 14 days, as required by rule 5(2)(b) and confirmed in Halai v Thornton & Turpin. The limitation and compensation issues were held arguable, and because the subject matter was land that could pass out of the applicants' reach, preservation was imperative. The application was allowed; an injunction issued, conditional on the applicants filing a competent appeal within 45 days, with costs of the application to abide the outcome of the appeal.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the applicants' intended appeal is competent, given the requirement that a notice of appeal be lodged within 14 days
  2. 2.Whether the intended appeal is arguable
  3. 3.Whether the appeal would be rendered nugatory if the injunction sought is not granted

Key legal issues

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01

Competence of the application - whether a notice of appeal was lodged in time

Holding

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).

Reasoning

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.

p. 3
02

Whether the intended appeal is arguable

Holding

The appeal is arguable on the issues of when the cause of action arose and whether the applicants' alleged compensation was proved and documented.

Reasoning

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.

p. 3
03

Whether the appeal would be rendered nugatory without an injunction

Holding

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.

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 1.The application dated July 13, 2021 is granted in terms of prayer 2
  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. 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. 4.Dates for the hearing of the appeal to be fixed at the registry
  5. 5.The costs of the application shall abide the outcome of the appeal

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
majority
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

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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.
p. 2Twin principles for relief under rule 5(2)(b)
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
p. 2Jurisdictional prerequisite under rule 5(2)(b)
The application dated July 13, 2021 is granted in terms of prayer 2;
p. 3Final orders - application granted
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.
Final orders - conditional injunction
The costs of the application shall abide the outcome of the appeal.
p. 3Final orders - costs

Issues in the judgment

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minor

Coram spells the third judge's surname 'LESSIT' while the signature block reads 'LESIIT'.

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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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.