Mbarak v Freedom Limited (Civil Application E008 of 2022) [2023] KECA 71 (KLR)
The bottom line
#The Court of Appeal refused to pause a land ruling because dismissing a claim is an order that cannot be stayed.
What this practically means
#Executive summary
#Key legal issues
#Whether the intended appeal is arguable
The arguability threshold was met: it is arguable whether the learned Judge was right in holding that the applicant failed to demonstrate that the property had not been subdivided and in dismissing his counterclaim.
Applying the settled standard that an arguable appeal need not be one that must necessarily succeed, the Court examined the memorandum of appeal, particularly the grievance concerning the question of subdivision of the grandfather's 983-acre property. Finding that ground arguable, the Court held the first requirement of Rule 5(2)(b) fulfilled, without expressing any view on the ultimate merits.
Whether there is an order capable of being stayed and whether the appeal would be rendered nugatory
No order capable of being stayed exists. Staying the injunction would prematurely overturn the ELC judgment, the dismissal of the counterclaim is a negative order incapable of being stayed, and no concrete threat to dispose of the property was demonstrated.
The respondent's suit was allowed by way of a declaration and a permanent injunction; staying the restraining order would amount to prematurely reversing the judgment below. The dismissal of the applicant's counterclaim was a negative order, which is trite law incapable of being stayed. Further, apart from the bare assertion that the respondent is at liberty to dispose of the property, no steps toward disposal or any threat to the property were demonstrated, so the nugatory prong also failed.
Whether the respondent's further submissions and further digest of cases should be expunged
The further submissions were disregarded because the applicant had no opportunity to respond, but the further digest of cases was admitted as relevant, consisting as it did of a High Court judgment in a related succession appeal between the same parties.
The Court drew a distinction between further submissions, which introduced material the applicant could not respond to and were therefore rightly objected to, and the further digest of cases, which comprised a High Court judgment in Succession Appeal No E14 of 2020 concerning the estate of Mbarak Awadh Salim, deceased, under whom the applicant claims, and was thus relevant to the dispute.
Legal principles established
#- A negative order, being a dismissal of a suit or counterclaim, is incapable of being stayed, and there is no jurisdiction under Rule 5(2)(b) to grant stay where the order below resulted in a dismissal or striking out.
- An arguable appeal for purposes of Rule 5(2)(b) need not be one that must necessarily succeed; a single arguable ground suffices.
Court orders
#- 1.The application dated February 16, 2022 is dismissed with costs to the respondent
- On appeal from
- Environment and Land Court
- 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, "Mbarak v Freedom Limited (Civil Application E008 of 2022) [2023] KECA 71 (KLR)", Case Analysis (2023). Civil Application No. E006 of 2022 (intended appeal from Environment and Land Court). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/71/eng@2023-02-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.