Keibukwo Investments Limited & another v Sayani Investments Limited & 3 others
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Arguability of the intended appeal
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.
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.
Nugatory value of the appeal if stay is not granted
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.
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.
Legal principles established
#- 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
#- 1.The applicants' application dated 19th June 2023 is dismissed
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.