Ngurimu (Suing as Guardian Ad Litem of Daniel Ngurimu Mungai) v Mungai & 2 others (Civil Application E471 of 2022) [2023] KECA 534 (KLR)
The bottom line
#The Court of Appeal froze two disputed land parcels, barring any sale, subdivision or interference until the owners' appeal is fully decided.
What this practically means
#Executive summary
#Key legal issues
#Whether the intended appeal is arguable under rule 5(2)(b)
The intended appeal is arguable, since the applicant raised bona fide grounds including denial of the right to be heard and the irregularity of judgment entered against a person of unsound mind.
The court reiterated that an arguable appeal is not one that must necessarily succeed but one that is not frivolous and raises a bona fide issue capable of full argument. The applicant's grounds - lack of proper representation, judgment entered without knowledge, and suit against a person of unsound mind - were sufficient. The court declined to make definitive findings to avoid embarrassing the bench seized of the main appeal.
Whether the appeal would be rendered nugatory absent preservation orders
The nugatory test was satisfied because uncontroverted evidence showed the respondents were destroying coffee crops and threatened to subdivide and dispose of the suit property, which would destroy the substratum of the appeal.
Applying the nugatory principle from Kinyanjui v Ketter and Reliance Bank Ltd v Norlake Investments Ltd, the court held that where the property is dealt with adversely and irreversibly, damages would not adequately compensate. The applicant's uncontroverted affidavits deposing to destruction of mature coffee trees and threatened subdivision and disposal established that the appeal would be rendered nugatory and academic without preservation orders.
Whether the court could determine the application in the absence of the respondents' response and submissions
The court proceeded to determine the application notwithstanding the absence of the respondents' reply and submissions, after efforts to locate the filed documents in the e-filing system failed.
Although counsel for the respondents appeared and indicated he had filed submissions, neither the response nor the submissions could be located in the e-filing system, casting doubt on whether they were ever filed. The respondents' advocate acknowledged the application was pending ruling but did not explain the missing documents. The court accordingly determined the application unopposed.
Legal principles established
#- An application for relief under rule 5(2)(b) must satisfy two prerequisites: the appeal or intended appeal must be arguable, and the appeal must be rendered nugatory if the orders are not granted.
- An arguable appeal need not succeed; it suffices that it raises at least one bona fide, non-frivolous issue deserving full argument, and the court must not make definitive findings of fact or law at the interlocutory stage.
- Whether an appeal will be rendered nugatory depends on whether what is sought to be stayed is reversible, or, if not reversible, whether damages will reasonably compensate the aggrieved party.
- Rule 5(2)(b) is essentially a preservation tool that safeguards the substratum of the appeal, derived from Article 164(3) of the Constitution.
- An application for injunction under rule 5(2)(b) invokes the equitable jurisdiction of the court and its grant must be made on principles established by equity.
Court orders
#- 1.Orders granted in terms of prayer 2 of the application dated December 19, 2022 - an inhibition order against LR Nos. Kiganjo/Kiamwangi/854 and Kiganjo/Kiamwangi/855 pending the hearing and determination of the appeal in COACA/739/2022
- 2.Orders granted in terms of prayer 3 of the application - a temporary order of injunction restraining the respondents, their agents, servants or anyone claiming through them from entering, trespassing, building, subdividing, registering or otherwise interfering with parcels Nos. Kiganjo/Kiamwangi/854 and Kiganjo/Kiamwangi/855 pending the hearing and determination of the appeal
- 3.Costs of the application to abide the outcome of Nairobi COACA 739 of 2022
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules, 2022, derived from Article 164(3) of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ngurimu (Suing as Guardian Ad Litem of Daniel Ngurimu Mungai) v Mungai & 2 others (Civil Application E471 of 2022) [2023] KECA 534 (KLR)", Case Analysis (2023). Nairobi COACA 739 of 2022 (application dated December 19, 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/534/eng@2023-05-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.