Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealDismissedApplication dated November 15, 2022 in intended appeal from Malindi ELC Case No 53 of 2021· [2023] KECA 7 (KLR)

Mahat v Poghisio (Civil Application E043 of 2022) [2023] KECA 7 (KLR)

Court of Appeal of Kenya
20 January 2023
SKS. GATEMBU KairuJLJ. LesiitGOG.V. Odunga
1,003 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

#

Kenya's Court of Appeal refused to stop a Vipingo Ridge land sale pending appeal because the buyer never occupied the property and damages would cover him.

What this practically means

#

Executive summary

#
This is an interlocutory ruling of the Court of Appeal at Mombasa on an application dated November 15, 2022 by Issa Ibrahim Mahat seeking an injunction to restrain Samuel Losuron Poghisio from developing, charging, disposing of, transferring, selling or otherwise dealing with property known as LR No 24880 at Vipingo Ridge, Kilifi, pending the hearing of an intended appeal against a ruling of the Environment and Land Court at Malindi delivered on October 19, 2022 in ELC Case No 53 of 2021. That ruling had dismissed the applicant's application for an interim injunction in a dispute arising from an agreement for sale dated May 18, 2020 for Kshs 30,000,000, in which the applicant seeks specific performance and alleges wrongful rescission by the vendor, who asserts the purchaser breached the agreement, leading to forfeiture of the deposit. Applying the settled rule 5(2)(b) test drawn from Stanley Kangethe Kinyanjui v Tonny Keter, the Court found the intended appeal arguable, as it was not frivolous but raised arguable complaints about the application of the Giella v Cassman Brown principles. However, the Court held the nugatory prong failed: the applicant had never been in possession, had not shown the property was in danger of disposal, and had not shown that damages would not adequately compensate him or that the respondent could not pay them. The application was dismissed with costs to the respondent. The ELC's ruling was not disturbed; no final appeal was determined, and the judgment creates no new binding precedent beyond reiterating the established twin test.

Key legal issues

#
01

Arguability of the intended appeal

Holding

The intended appeal was arguable, since the applicant complained that the ELC erred in finding the Giella v Cassman Brown threshold for a temporary injunction unmet

Reasoning

Counsel relied on the draft memorandum of appeal contending the ELC erred in concluding the prima facie case threshold was not established. The Court reiterated that an arguable appeal need not necessarily succeed but must merely merit consideration, and found the intended appeal was not frivolous but arguable.

p. 2
02

Whether the appeal would be rendered nugatory absent the injunction

Holding

The nugatory test was not satisfied; the application was dismissed with costs

Reasoning

The applicant did not contest he had never been in possession of the property, did not demonstrate the property was in danger of being disposed of, did not show damages would be inadequate, and did not suggest the respondent could not meet an award of damages. The single-judge ELC ruling dismissing the interim injunction was therefore left undisturbed and the interlocutory application failed.

p. 2

Legal principles established

#
  • An applicant for an injunction pending appeal under rule 5(2)(b) must demonstrate that the intended appeal is arguable and that, if the orders are declined and the appeal ultimately succeeds, the appeal would have been rendered nugatory (an exercise in futility).
  • An arguable appeal is not one that must necessarily succeed but one that merits consideration by the Court.

Court orders

#
  1. 1.Application dated November 15, 2022 dismissed
  2. 2.Costs of the application awarded to the respondent

Authorities

#

Cases cited (3)

  • Stanley Kangethe Kinyanjui v Tonny Keter & others
    [2013] eKLR
  • Giella v Cassman Brown
    [1973] EA 358
  • GNN v LNN
    [2020] eKLR
On appeal from
Environment and Land Court at Malindi
ELC Case No 53 of 2021
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules (injunction pending appeal); this is an interlocutory application, not a determination of an appeal

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Mahat v Poghisio (Civil Application E043 of 2022) [2023] KECA 7 (KLR)", Case Analysis (2023). Application dated November 15, 2022 in intended appeal from Malindi ELC Case No 53 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/7/eng@2023-01-20

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.