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Court of AppealDismissedCivil Application E273 of 2023· [2023] KECA 1676 (KLR)

Keibukwo Investments Limited & another v Sayani Investments Limited & 3 others

Court of Appeal
15 December 2023
1,302 words in judgment
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The bottom line

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What this practically means

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Executive summary

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The applicants, Keibukwo Investments Limited and Sadhani Limited, brought a single application under Rule 5(2)(b) of the Court of Appeal Rules seeking, pending appeal, a stay of execution of the judgment of the Environment and Land Court (Okongó, J.) of 18th April 2023 in ELC Judicial Review No. 77 of 2018, and an injunction restraining rectification of survey records to cancel Deed Plan No. 356256, issued for the amalgamation of LR Nos. 209/923, 924 and 925 into LR No. 209/20737. The ELC had quashed the Deed Plan, finding the allocation and title to the applicants illegal and the Deed Plan created unprocedurally. The applicants argued the appeal was arguable on jurisdictional grounds and that cancellation of the Deed Plan would render the appeal nugatory. The 1st respondent countered that the Deed Plan had been cancelled by the Director of Survey in 2014 and the Certificate of Title by the Chief Land Registrar in November 2017, and had also been quashed by a prior ELC judgment in 2021. Applying the principles in Stanley Kangethe Kinyanjui v. Tony Ketter, the court found the intended appeal arguable but held the nugatory limb failed: the subject matter was already cancelled, so the orders would be in vain, and the quashing order was reversible if the appeal succeeded. The application was dismissed with costs to the 1st respondent. The underlying appeal remains pending; this ruling does not disturb the ELC judgment.

Key legal issues

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01

Arguability of the intended appeal

Holding

The intended appeal is arguable and not frivolous, based on grounds including want of jurisdiction by the ELC and exclusive power of the Director of Survey to cancel a Deed Plan.

Reasoning

The court reviewed the memorandum of appeal, noting grievances that the ELC received a High Court file without jurisdiction, that under the Survey Act cancellation of a Deed Plan is reserved exclusively for the Director of Survey, and that the ELC conducted a merit review in judicial review proceedings. On these grounds it was satisfied the appeal was arguable.

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02

Nugatory value of the appeal if stay is not granted

Holding

The nugatory limb failed because the Deed Plan and Certificate of Title were already cancelled, making the orders sought in vain, and the quashing order is reversible on appeal.

Reasoning

The court found indications that the contentious Deed Plan and the Certificate of Title over the amalgamated parcel were already cancelled (the latter by the Chief Land Registrar in November 2017 and by an ELC judgment in 2021). Granting stay or injunction would therefore serve no purpose; moreover, a positive quashing order is reversible if the appeal succeeds.

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Legal principles established

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  • For an order under Rule 5(2)(b), the applicant must demonstrate that the intended appeal is arguable and that, unless the orders sought are granted, the appeal or its success will be rendered nugatory.
  • Where the subject matter of a stay or injunction has already been cancelled or otherwise dealt with, granting the orders sought would be in vain (nugatory).

Court orders

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  1. 1.The applicants' application dated 19th June 2023 is dismissed
  2. 2.Costs of the application awarded to the 1st respondent
On appeal from
Environment and Land Court at Nairobi
ELC Judicial Review No. 77 of 2018
Jurisdiction invoked
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, "Keibukwo Investments Limited & another v Sayani Investments Limited & 3 others", Case Analysis (2023). Civil Application E273 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/1676/eng@2023-12-15

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