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 AppealPartially AllowedCivil Application No. E021 of 2023 (Rule 5(2)(b) application arising from Succession Appeal No. E14 of 2020)· [2023] KECA 350 (KLR)

Mbarak (In the matter of the Estate of Mbarak Awadh Salim (Deceased) v Freedom Limited (Civil Application E004 of 2023) [2023] KECA 350 (KLR)

Court of Appeal of Kenya
31 March 2023
SKS. Gatembu KairuPNP. NyamweyaJLJ. Lesiit
720 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~3 min to read original · ~4 min brief

The bottom line

#

The Court of Appeal froze a Mombasa property's current state pending appeal, but only if the appellant files the appeal record within 45 days.

What this practically means

#

Executive summary

#
This is a ruling of the Court of Appeal at Mombasa (Kairu, Nyamweya and Lesiit, JJ.A) on a notice of motion brought under Rule 5(2)(b) of the Court of Appeal Rules by Omar Awadh Mbarak, seeking an injunction to restrain Harji Govind Ruda from further subdividing, demarcating, selling, charging, leasing or otherwise alienating Plot Number 287 Section V Mazera's pending the hearing of an intended appeal against a High Court judgment of Onyiego, J. delivered on October 21, 2022 in Succession Appeal No. E14 of 2020. The High Court had held that the Chief Kadhi has no jurisdiction over disputes of land ownership and had reviewed the Chief Kadhi's orders of June 2013, removing the property from the list of assets for distribution from the estate of Mbarak Awadh Salim, deceased, pending ELC Case No. 358 of 2016. Applying the established twin test, the Court found the intended appeal arguable on the complaint that the Judge reviewed the Kadhi's orders without identifying the errors made, and held that further sub-division and alienation would render a successful appeal irreversible and nugatory. The Court declined the injunction in the precise terms sought and instead ordered maintenance of the status quo as at the date of the ruling, conditional on the applicant filing and serving a competent record of appeal within 45 days, failing which the order lapses automatically. Costs were made costs in the intended appeal. This ruling binds no court below on the merits; it preserves the position pending the substantive appeal.

Key legal issues

#
01

Test for grant of injunction or stay pending appeal under Rule 5(2)(b)

Holding

The applicant must show an arguable appeal and that the appeal would be rendered nugatory if the orders are not granted. Both limbs were satisfied on the facts.

Reasoning

The Court applied the established twin principles, citing Co-operative Bank of Kenya Ltd v Banking Insurance & Finance Union (Kenya). It found the draft memorandum of appeal raised arguable complaints about the High Court's review of the Chief Kadhi's orders without identifying errors, and that further sub-division and alienation would render a successful appeal irreversible and nugatory.

p. 2
02

Appropriate relief where the property may be irreversibly alienated pending appeal

Holding

Rather than the injunction in the terms sought, the Court ordered maintenance of the status quo as at the date of the ruling, conditional on filing a competent record of appeal within 45 days, failing which the order lapses automatically.

Reasoning

The Court reasoned that it would not be feasible to reverse the position if further sub-division and alienation continued and the appeal eventually succeeded. It therefore tailored an interim status quo order with an inbuilt conditionality to compel diligent prosecution of the appeal, balancing the applicant's preservation interest against the respondent's position that the property had already been sub-divided.

p. 2

Legal principles established

#
  • A Rule 5(2)(b) applicant must demonstrate both that the intended appeal is arguable and that it will be rendered nugatory if the orders sought are not granted
  • An arguable appeal is not one that must necessarily succeed, but one that deserves full consideration by the Court

Court orders

#
  1. 1.An order that the status quo obtaining at the date of delivery of the ruling shall be maintained pending the hearing and determination of the intended appeal
  2. 2.The order for maintenance of status quo is conditional upon the applicant filing and serving a competent record of appeal within 45 days, failing which it automatically lapses and is discharged
  3. 3.Costs of the application to be in the intended appeal

Authorities

#

Legislation

  • Court of Appeal RulesRule 5(2)(b)

Cases cited (2)

  • Co-operative Bank of Kenya Limited vs. Banking Insurance & Finance Union (Kenya)
    [2015] eKLR
  • China Road & Bridge Corporation (K) Ltd vs. African Gas & Oil Co. Ltd & 3 others
    [2016] eKLR
On appeal from
High Court of Kenya at Mombasa
Succession Appeal No. E14 of 2020
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules (injunction pending appeal from the High Court)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Mbarak (In the matter of the Estate of Mbarak Awadh Salim (Deceased) v Freedom Limited (Civil Application E004 of 2023) [2023] KECA 350 (KLR)", Case Analysis (2023). Civil Application No. E021 of 2023 (Rule 5(2)(b) application arising from Succession Appeal No. E14 of 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/350/eng@2023-03-31

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