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Court of AppealDismissedNot stated in the judgment (application under rule 5(2)(b) of the Court of Appeal Rules; applicant referenced Civil Application No E279 of 2023 as a related application)· [2023] KECA 1001 (KLR)

Muungano wa Wanavijiji Akiba Mashinani Trust v Kihiu & 3 others; Waweru & 4 others (Interested Parties) (Civil Application E250 of 2022) [2023] KECA 1001 (KLR)

Court of Appeal of Kenya
28 July 2023
2,991 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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The Court of Appeal refused to preserve two Nairobi land parcels pending an appeal, ruling a trustee cannot hold onto title deeds against the beneficiaries' interests.

What this practically means

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Executive summary

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This was an interlocutory application dated July 15, 2022, brought under rules 5(2)(b), 41 and 47 of the Court of Appeal Rules, sections 3A and 3B of the Appellate Jurisdiction Act and article 50(1) of the Constitution, in an intended appeal against a judgment of the Environment and Land Court. The ELC had ordered the applicant to unconditionally transfer two Nairobi parcels, LR 7109/88 and LR 7109/89, to the respondents to hold in trust for the members of Mukuru Makao Bora Trust. Before the Court of Appeal, the applicant sought deposit of the title deeds in court, alternatively a temporary proprietary injunction restraining any disposition of the properties, and further a mandatory injunction compelling the respondents to deposit income generated from the properties pending the appeal. The respondents and the interested parties opposed the application. Applying the settled rule 5(2)(b) test of an arguable appeal and nugatory aspect, the court held that the applicant had itself admitted holding the properties in trust for the Trust; the respondents had fulfilled the conditions for discharge of the titles; and the applicant's insistence on clinging to the titles because of internal distrust among Trust members was itself a breach of the trust reposed in it. The court also held that the applicant had no counterclaim to anchor the mandatory injunction, and that the intended appeal would not be rendered nugatory since the judgment directed transfer to the Trust, not to individuals. The application was dismissed with costs to the respondents.

Key legal issues

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01

Whether the intended appeal was arguable

Holding

The intended appeal was not arguable; the applicant had admitted holding the suit properties in trust for the Trust, and the respondents had fulfilled the conditions for discharge of the titles.

Reasoning

The court found it uncontested, and admitted by the applicant itself, that it held the suit properties in trust. The respondents had fulfilled the conditions set by the applicant before the titles were discharged by the financier. The applicant could not cling to the title documents on the basis of internal distrust among Trust members, which would itself breach the trust bestowed on it. The grounds raised were issues internal to the Trust, to which the applicant was not privy.

p. 6
02

Whether the intended appeal would be rendered nugatory if the orders were not granted

Holding

The appeal would not be rendered nugatory because the applicant did not own the land and the judgment directed transfer to the Trust, not to individuals.

Reasoning

The court reasoned that the applicant was merely holding the property in trust and did not own it. Since the ELC judgment required transfer of the land to Mukuru Makao Bora Trust rather than to any individual, the appeal, if successful, would not be rendered nugatory in the absence of the preservation and injunction orders sought.

p. 6
03

Whether a mandatory injunction could be granted

Holding

No mandatory injunction could issue because the applicant had no counterclaim to anchor the prayer.

Reasoning

The court observed that a prayer for a mandatory injunction must be anchored on a counterclaim. The applicant had filed no counterclaim against the respondents, whether for the alleged outstanding balance of the purchase price or otherwise, and therefore the relief sought lacked any substantive foundation in the suit.

p. 6

Legal principles established

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  • An applicant under rule 5(2)(b) must demonstrate both an arguable appeal and that the appeal would be rendered nugatory absent stay
  • An arguable appeal need not raise multiple grounds; a single bona fide question suffices

Court orders

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  1. 1.The application dated July 15, 2022 is dismissed
  2. 2.Costs of the application awarded to the respondents

Authorities

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Legislation

  • Court of Appeal RulesRule 5(2)(b)
  • Court of Appeal RulesRule 41
  • Court of Appeal RulesRule 47
  • Appellate Jurisdiction ActSection 3A
  • Appellate Jurisdiction ActSection 3B
  • Constitution of Kenya, 2010Article 50(1)

Cases cited (2)

  • Parliamentary Service Commission v Okoiti & another (Civil Application E349 of 2021) [2021] KECA 120 (KLR) (22 October 2021) (Ruling)
    [2021] KECA 120 (KLR)
  • Ahmed Musa Ismael vs Kumba Ole Ntamorua & 4 others [2014] eKLR
    [2014] eKLR
On appeal from
Environment and Land Court (ELC)
Not stated
Jurisdiction invoked
Rules 5(2)(b), 41 and 47 of the Court of Appeal Rules, sections 3A and 3B of the Appellate Jurisdiction Act and article 50(1) of the Constitution

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Muungano wa Wanavijiji Akiba Mashinani Trust v Kihiu & 3 others; Waweru & 4 others (Interested Parties) (Civil Application E250 of 2022) [2023] KECA 1001 (KLR)", Case Analysis (2023). Not stated in the judgment (application under rule 5(2)(b) of the Court of Appeal Rules; applicant referenced Civil Application No E279 of 2023 as a related application). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/1001/eng@2023-07-28

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