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Court of AppealDismissedNotice of motion dated May 16, 2023 (Civil Appeal arising from Kitale Land Case No 45 of 2019)

Samoei v Samoei (sued on behalf of the Estate of the late Joseph Kisorio Samoei) & 3 others (Civil Application E123 of 2023) [2023] KECA 1544 (KLR)

Court of Appeal of Kenya
15 December 2023
1,552 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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The Court of Appeal refused to block land dealings pending appeal because any harm could be fixed later with money, though it agreed the appeal itself was worth hearing.

What this practically means

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Executive summary

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The Court of Appeal (Nakuru), composed of Sichale, Nyamweya and Korir, JJA, in a single judgment of the court, dismissed an application dated May 16, 2023 by Kimwei Arap Samoei seeking an injunction pending appeal restraining the respondents from destroying boundaries, demarcating, sub-dividing, selling or evicting him from Kitale Municipality Block 15/Koitogos/246. The Environment and Land Court in Kitale had, on February 27, 2020, ordered the suit property registered in the name of the late Kipsongok Arap Chepkulei pending distribution, on a finding of a resulting trust, and the title had since been transferred. Applying rule 5(2)(b) of the Court of Appeal Rules and the principles in Stanley Kang'ethe Kinyanjui v Tony Ketter, the court found the intended appeal arguable: the applicant had raised triable issues as to the resulting trust finding and the revocation of his 1993 title without proof of fraud. However, the second limb failed. The court held there was no risk of interference with the title other than through a court-sanctioned process in which the applicant, as a beneficiary of the estate, would be a necessary party, and that any changes to boundaries or occupation would be reversible and compensable in damages. The court cautioned counsel against conflating interlocutory injunction principles (Giella v Cassman Brown; Mrao) with the rule 5(2)(b) test. The application was dismissed with no order as to costs, being a family dispute. This decision binds subordinate courts and tribunals on the rule 5(2)(b) threshold.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the intended appeal is arguable
  2. 2.Whether, unless the injunction is granted, the appeal will be rendered nugatory
  3. 3.Whether the application merits an order of injunction pending appeal

Key legal issues

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01

Test for injunction pending appeal under rule 5(2)(b)

Holding

Applicant must show an arguable appeal and that the appeal would be rendered nugatory without the injunction

Reasoning

The court restated the settled two-limb test from Stanley Kang'ethe Kinyanjui v Tony Ketter. Counsel for the applicant wrongly conflated interlocutory injunction principles (prima facie case, irreparable damage, balance of convenience) with the rule 5(2)(b) test, which the court held inapplicable.

p. 1
02

Arguability of the intended appeal

Holding

The appeal was arguable because it raised triable issues on the resulting trust finding and revocation of title

Reasoning

The applicant challenged the legal basis of the trial court's finding of a resulting trust and the revocation of his 1993 title without proof of fraud. The court held the threshold low, requiring only one non-frivolous triable issue, and found the applicant merited an opportunity to argue these concerns.

p. 3
03

Nugatory aspect

Holding

The appeal would not be rendered nugatory absent the injunction

Reasoning

The title had already been transferred to the deceased's name by court process; there was no risk of interference other than through a court-sanctioned process in which the applicant, as a beneficiary, would be a necessary party. Boundary changes or occupation changes were reversible and compensable in damages.

p. 3

Legal principles established

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  • An applicant under rule 5(2)(b) must demonstrate an arguable appeal and that the appeal will be rendered nugatory absent the order
  • The threshold for an arguable appeal is low - it need not succeed, only be non-frivolous; one triable issue suffices
  • Whether an appeal will be rendered nugatory depends on whether what is to be stayed or injuncted is reversible or compensable in damages, considered in the circumstances of each case with the conflicting claims of both sides

Court orders

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  1. 1.The applicant's notice of motion application dated May 16, 2023 is dismissed
  2. 2.No order as to the costs of the application

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
majority
On appeal from
Environment and Land Court
Kitale Land Case No 45 of 2019
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules (injunction/stay pending appeal)

Relief refused

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Order restraining the Respondents from destroying boundaries, demarcating, sub-dividing, selling and/or evicting the Applicant from the suit property pending appeal

The appeal was arguable but the nugatory threshold was not met; any changes to boundaries or occupation are reversible and prejudice can be compensated in damages

p. 3

Costs

No order as to costs - 'As this is a dispute between family members there shall be no order as to the costs of the application.'

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

The principles that apply to the application before us for an injunction pending appeal are settled.
p. 1Injunction pending appeal - applicable principles
the threshold for an arguable appeal is a low one, it is not necessarily one which must succeed, but one which is not frivolous and merits to be argued fully
p. 3Arguable appeal threshold
factors which render an appeal nugatory are to be considered within the circumstances of each case and in so doing the Court is bound to consider the confiicting claims of both sides
p. 3Nugatory appeal - case-by-case assessment
The result is that the applicant’s notice of motion application dated May 16, 2023 is found to be unmerited and is accordingly dismissed. As this is a dispute between family members there shall be no order as to the costs of the application.
p. 3Disposition and costs

Issues in the judgment

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minor

Internal date inconsistency: paragraph 4 states the applicant's stay application was withdrawn on November 10, 2023, but the same affidavit is described as sworn on October 11, 2023, and the hearing occurred on October 17, 2023 - events dated after those dates appear in the record

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, "Samoei v Samoei (sued on behalf of the Estate of the late Joseph Kisorio Samoei) & 3 others (Civil Application E123 of 2023) [2023] KECA 1544 (KLR)", Case Analysis (2023). Notice of motion dated May 16, 2023 (Civil Appeal arising from Kitale Land Case No 45 of 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/1544/eng@2023-12-15

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