Standard Chartered Kenya Nominees Limited (As nominees of the Trustees of Standard Chartered Kenya Pension Fund) v Njeru (Sued as the personal representative of Samwel Njeru Muthi (Deceased)) & 3 others (Civil Application E586 of 2023) [2024] KECA 512 (KLR)
The bottom line
#Kenya's Court of Appeal blocked the demolition of a contested Muthaiga property pending appeal, confirming injunctions protect appellants even after a case dismissal.
What this practically means
#Executive summary
#Key legal issues
#Arguability of the intended appeal
The contention that the trial judge dismissed the suit without hearing the witnesses present, thereby determining a contentious land dispute without considering the merits, was not frivolous and satisfied the arguability threshold.
The court applied the settled twin test for Rule 5(2)(b) relief, referencing Stanley Kang'ethe Kinyanjui v Tony Keter. Although the misdirection argument might not ultimately prevail, it was not frivolous; a single arguable point is enough to warrant consideration by the appellate bench hearing the appeal.
Whether the appeal would be rendered nugatory
Allowing the respondent to demolish developments and take possession would irreversibly alter the character of the disputed property, rendering the appeal nugatory.
The court rejected the respondent's assertion that he was claiming a different property (LR 214/91) as disingenuous, given his resistance to the application. Irreversible destruction of the developments and change of possession would render any successful appeal nugatory, justifying injunctive protection.
Injunction versus stay where the order below is a negative order
The court distinguished an injunction from a stay; an injunction may issue even where the impugned order is a dismissal.
The respondent argued that a dismissal order is a negative order incapable of being stayed. The court held that the applicant was seeking protection through an injunction, not a stay, and an injunction is grantable where deserved regardless of the negative nature of the order under challenge.
Whether absence of a memorandum of appeal or decree defeats the application
Neither the absence of a memorandum of appeal nor failure to attach a decree was fatal at this stage.
The court held there was no formal application under Rule 85 for deeming orders, so it would not make a call on withdrawal of the notice of appeal; proceedings had been requested, and Rule 84(1) and (2) time exclusions might apply. No requirement to attach a decree existed at that stage, and the dismissal order's existence was conceded.
Legal principles established
#- An order of injunction may be granted under Rule 5(2)(b) even where the order sought to be appealed from is a dismissal (a negative order), because the relief sought is an injunction and not a stay.
- Where demolition of developments and taking possession of a disputed property would so alter its character that the damage would be irreversible, the appeal would be rendered nugatory and an injunction should issue pending appeal.
- A single arguable point suffices to satisfy the arguability limb of the Rule 5(2)(b) test.
Court orders
#- 1.The application dated 13th December 2023 is allowed in terms of prayers (b) and (c)
- 2.Pending the hearing and determination of the applicant's appeal, the respondent by himself, his servants, employees or agents is restrained, by order of injunction, from entering upon, remaining, or trespassing upon, or from destroying, demolishing, pulling down or damaging the developments on the property known as L.R. No. 214/12, situate in Muthaiga Nairobi
- 3.Costs shall be in the intended appeal
- On appeal from
- Environment and Land Court
- ELC Case No. 537 of 2018
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules, 2022 (injunction pending appeal)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Standard Chartered Kenya Nominees Limited (As nominees of the Trustees of Standard Chartered Kenya Pension Fund) v Njeru (Sued as the personal representative of Samwel Njeru Muthi (Deceased)) & 3 others (Civil Application E586 of 2023) [2024] KECA 512 (KLR)", Case Analysis (2024). Not stated in judgment (application dated 13th December 2023 under Rule 5(2)(b)). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/512/eng@2024-04-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.