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Court of AppealAllowedNot stated in judgment (application dated 13th December 2023 under Rule 5(2)(b))· [2024] KECA 512 (KLR)

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)

Court of Appeal
26 April 2024
1,303 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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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

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Executive summary

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The applicants, nominees of the Trustees of the Standard Chartered Kenya Pension Fund, sought injunctive orders under Rule 5(2)(b) of the Court of Appeal Rules, 2022, restraining the 1st respondent, the personal representative of Samwel Njeru Muthi (deceased), from entering upon, trespassing on, or demolishing developments on LR No. 214/12, Muthaiga, pending an intended appeal against the dismissal of their suit by the Environment and Land Court (Wabwoto, J) on 9th November 2023 in ELC Case No. 537 of 2018. The suit concerned competing claims to the property, the applicants relying on an original indenture and conveyance while public records had gone missing. The 1st respondent opposed, arguing the absence of a memorandum of appeal rendered the notice of appeal withdrawn under Rule 85, that no decree was attached, that a negative dismissal order could not be stayed, and that his father was registered proprietor of a different property, LR 214/91. The Court disposed of preliminary objections: no formal Rule 85 application was before it; Rule 84 time exclusions might apply; no decree need be attached at that stage; and an injunction, unlike a stay, is grantable even where the impugned order is a negative one. Finding the contention that the trial judge dismissed the suit without hearing witnesses to be arguable, and holding that demolition and taking possession would irreversibly alter the property's character and render the appeal nugatory, the Court allowed the application in terms of prayers (b) and (c), issued the injunction pending the appeal, and ordered costs to be in the intended appeal.

Key legal issues

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01

Arguability of the intended appeal

Holding

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.

Reasoning

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.

p. 3
02

Whether the appeal would be rendered nugatory

Holding

Allowing the respondent to demolish developments and take possession would irreversibly alter the character of the disputed property, rendering the appeal nugatory.

Reasoning

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.

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Injunction versus stay where the order below is a negative order

Holding

The court distinguished an injunction from a stay; an injunction may issue even where the impugned order is a dismissal.

Reasoning

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.

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04

Whether absence of a memorandum of appeal or decree defeats the application

Holding

Neither the absence of a memorandum of appeal nor failure to attach a decree was fatal at this stage.

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 1.The application dated 13th December 2023 is allowed in terms of prayers (b) and (c)
  2. 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. 3.Costs shall be in the intended appeal

Authorities

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Legislation

  • Court of Appeal Rules, 2022Rule 5(2)(b)
  • Court of Appeal Rules, 2022Rule 84(1) and (2)
  • Court of Appeal Rules, 2022Rule 85

Cases cited (1)

  • Stanley Kang'ethe Kinyanjui v Tony Keter & 5 Others
    [2013] eKLR
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

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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, "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.