G.E. Karachiwalla (Properties) Limited v National Land Commission & 8 others
The bottom line
#The Court of Appeal protected a Mombasa landowner's 93-acre plot from a settlement scheme until its appeal is decided.
What this practically means
#Executive summary
#Key legal issues
#Whether the intended appeal is arguable
The court found the intended appeal arguable, accepting that the applicant raised arguable points including the claim that the property was illegally included in the Tsunza settlement scheme.
Counsel relied on settled principles including Stanley Kangethe Kinyanjui v Tony Ketter. The applicant needed to demonstrate only one arguable point. The court was satisfied the appeal was not frivolous, noting the applicant's contention that the judge erred in holding that the property was not illegally included in the settlement scheme.
Whether the appeal would be rendered nugatory without an injunction
The court held the nugatory test was met because, absent an injunction, the respondents might allocate the property to third parties, placing it beyond the applicant's reach if the appeal succeeded.
The submission that the respondents would proceed to allocate the property or parts of it to third parties was made without contest. The court reasoned that in that event the property would be out of the applicant's reach should the appeal ultimately succeed, and found merit in that argument.
Legal principles established
#- On a rule 5(2)(b) application the applicant must satisfy the twin tests that the intended appeal is arguable and that it will be rendered nugatory unless the order sought is granted; one arguable point suffices.
Court orders
#- 1.Application dated September 26, 2022 allowed in terms of prayer 3
- 2.Injunction restraining the respondents from including plot no. 1041 (93 acres, west of Mombasa) in the Tsunza settlement scheme, from carrying out any adjudication, and from interfering with the applicant's occupation, possession, use or dealing with the property pending determination of the intended appeal
- 3.Costs of the application to abide the outcome of the intended appeal
- On appeal from
- Environment & Land Court at Kwale
- ELC Constitutional Petition No. 17 of 2021
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules, 2022
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "G.E. Karachiwalla (Properties) Limited v National Land Commission & 8 others", Case Analysis (2022). Civil Application E062 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1298/eng@2022-12-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.