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)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the intended appeal was arguable
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.
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.
Whether the appeal would be rendered nugatory absent preservation orders
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.
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.
Legal principles established
#- 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
#- 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.The order shall remain in force until the appeal is determined
- 3.Costs of the application shall be in the cause in the substantive appeal
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.