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Court of AppealAllowedCivil Application No. E092 of 2023· [2023] KECA 1198 (KLR)

Nkoimo (suing as the Legal Administrator of the Estate of Stanley Lemoiyo Nkoimo) v Asanyo & 4 others (Civil Application E018 of 2023) [2023] KECA 1198 (KLR)

Court of Appeal
6 October 2023
3,516 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal blocked the sale of disputed Transmara land until an appeal is decided, protecting the estate's claim from being wiped out.

What this practically means

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Executive summary

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This was a Notice of Motion dated 28th February, 2023 brought under Sections 3A and 3B of the Appellate Jurisdiction Act and Rule 5(2)(b) of the Court of Appeal Rules, in which the applicant sought an injunction restraining the respondents from selling, alienating or interfering with land parcel No Narok/Transmara/Intona 5 pending an intended appeal against a ruling that struck out her suit (ELC E005 of 2022) on a preliminary objection grounded in the Limitation of Actions Act. The court, comprising Ochieng, Achode and Korir JJA, framed the sole issue as whether the application met the Rule 5(2)(b) threshold, and restated the settled twin principles from Stanley Kangethe Kinyanjui v Tony Keter: the intended appeal must be arguable, and if successful would be rendered nugatory absent the orders sought. On arguability, the court found that the contention that the learned Judge ventured into disputed facts when determining the preliminary objection called for serious consideration, so the appeal was arguable. On the nugatory limb, noting that all parties laid conflicting claims of occupation to portions carved out of the original parcel Narok/Transmara/Intona/3, that the original title no longer existed, and that the applicant alleged forgery of her late husband's signature in the subdivision, the court held the parcels might change hands absent preservation. The application was allowed: an injunction was issued restraining the respondents from selling, alienating or interfering with the suit land until the appeal is determined, with costs of the application in the cause in the substantive appeal.

Key legal issues

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01

Whether the intended appeal was arguable

Holding

The court found the ground that the learned Judge ventured into facts in determining the preliminary objection called for serious consideration, so the appeal was arguable.

Reasoning

The applicant's draft memorandum contended the trial judge determined the preliminary objection based on disputed facts rather than pure points of law. The respondents contested this, saying the judge relied only on undisputed facts. The court held that whether a judge improperly entered the realm of fact when ruling on a jurisdictional limitation objection is a question deserving full argument, so a single bona fide arguable ground was established without making definitive findings.

p. 6
02

Whether the appeal would be rendered nugatory absent preservation orders

Holding

Given conflicting claims of occupation over the suit land and the applicant's allegation of forgery in the subdivision, failure to grant the injunction would render the appeal nugatory because the parcels could change hands.

Reasoning

All parties claimed occupation of land carved out of the original parcel Narok/Transmara/Intona/3. The original title no longer existed, and the applicant alleged her husband's signature was forged to subdivide it. Although preservatory orders existed in other pending suits, the court found those insufficient since the respondents opposed the injunction despite them, indicating the land could be dealt with. Injunction preserved the substratum of the appeal.

p. 7

Legal principles established

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  • An applicant under Rule 5(2)(b) must satisfy both twin principles: that the appeal or intended appeal is arguable and that it would be rendered nugatory if the orders sought are not granted.
  • The jurisdiction of the Court of Appeal under Rule 5(2)(b) is original, independent and discretionary, and does not constitute an appeal from the trial judge's discretion.
  • An arguable appeal need not be one that will definitely succeed; it is sufficient that it raises a serious question of law or a reasonable argument deserving consideration.

Court orders

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  1. 1.An injunction to restrain the respondents from selling, alienating and/or interfering in any way whatsoever with parcel No Narok/Transmara/Intona/5
  2. 2.The order shall remain in force until the appeal is determined
  3. 3.Costs of the application shall be in the cause in the substantive appeal

Authorities

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Legislation

  • Appellate Jurisdiction ActSections 3A, 3B
  • Court of Appeal Rules, 2010Rule 5(2)(b), Rule 75
  • Court of Appeal Rules, 2022Rule 5(2)(b)
  • Limitation of Actions Act
  • Civil Procedure ActSection 27
  • Constitution of Kenya, 2010Article 164(3)

Cases cited (17)

  • Jennifer Akinyi Osodo v Boniface Okumu Osodo & 3 others
    [2021] eKLR
  • Priscilla Wambui Mathenge v Mary Wairimu Mathenge & Another
    [2020] eKLR
  • The Registered Trustees African Gospel Church v Victor Mungai Kamunge & 2 Others
    Civil Application No E384 of 2022
  • Chris M. N. Bichange v Richard Nyangaka Tongi & 2 Others
    [2013] eKLR
  • Kenya Breweries Limited v Lawrence Ndutu & 6000 Others
    [2014] eKLR
  • Mwangi v Nyali Golf & Country Club
    [2022] KECA 455 KLR
  • Stanley Kangethe Kinyanjui v Tony Keter & 5 Others
  • Teachers Service Commission v Kenya National Union of Teachers
    Sup. Ct. Appl. No 16 of 2015
  • Trust Bank Limited & another v Investech Bank Limited & 3 others
    Civil Application Nai. 258 of 1999
  • Dennis Mogambi Mang'are v Attorney General & 3 Others
    Civil Application No Nai 265 of 2011 (UR 175/2011)
  • Ruben & 9 Others v Nderitu & Another
    (1989) KLR 459
  • Halai & Another v Thornton & Turpin (1963) Ltd.
    (1990) KLR 365
  • David Morton Silverstein v Atsango Chesoni
    Civil Application No Nai 189 of 2001
  • Damji Pragji Mandavia v Sara Lee Household & Body Care (K) Ltd
    Civil Application No Nai 345 of 2004
  • Joseph Gitahi Gachau & Another v Pioneer Holdings (A) Ltd. & 2 others
    Civil Application No 124 of 2008
  • Reliance Bank Ltd v Norlake Investments Ltd
    [2002] 1 EA 227
  • International Laboratory for Research on Animal Diseases v Kinyua
    [1990] KLR 403
On appeal from
Environment and Land Court
ELC E005 of 2022
Jurisdiction invoked
Sections 3A and 3B of the Appellate Jurisdiction Act and Rule 5(2)(b) of the Court of Appeal Rules

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, "Nkoimo (suing as the Legal Administrator of the Estate of Stanley Lemoiyo Nkoimo) v Asanyo & 4 others (Civil Application E018 of 2023) [2023] KECA 1198 (KLR)", Case Analysis (2023). Civil Application No. E092 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/1198/eng@2023-10-06

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