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Court of AppealDismissed· [2024] KECA 534 (KLR)

Ndambuki & another (Suing as administrators to the Late Gregory Ndambuki) v National Land Commission & 2 others (Civil Application E092 of 2024) [2024] KECA 534 (KLR)

Court of Appeal
9 May 2024
2,031 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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The Court of Appeal refused to stop demolition and transfer of a Nairobi property, ruling the legal owners' rights could be reversed and compensated with damages if the appeal succeeded.

What this practically means

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Executive summary

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By a notice of motion dated 28th February 2024 under Article 159 of the Constitution and Rule 5(2)(b) of the Court of Appeal Rules, 2022, the applicants sought an injunction restraining the 3rd respondent from demolishing structures on, or transferring or alienating, LR No. Nairobi/Block/42/118 pending an intended appeal against the judgment of Mbugua J in ELC No. E022 of 2023 delivered on 22nd February 2024, which affirmed the validity of the 3rd respondent's title. The applicants argued the intended appeal was arguable and would be rendered nugatory if demolition proceeded, as the value of the structures was unascertainable and damages would be inadequate. The 3rd respondent countered that the appeal was not arguable, the deceased's lease having expired in 2004, and that no subject matter remained to preserve. The Court of Appeal (Nyamweya, Achode and Mativo JJA) restated the settled two-pronged test under Rule 5(2)(b): an arguable appeal and nugatory prejudice. On the first limb, it found the intended appeal arguable, citing grounds challenging the validity of the 3rd respondent's lease and the trial court's procedural rulings, without making final findings. On the second limb, however, it held the appeal would not be rendered nugatory: the deceased's 54-year lease had lapsed over 19 years earlier, a new 99-year lease had issued to the 3rd respondent which could be cancelled if the appeal succeeded, and damages would adequately compensate the applicants. The application was accordingly dismissed with no orders as to costs.

Key legal issues

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01

Whether the intended appeal is arguable

Holding

The intended appeal is arguable because the draft memorandum raises bona fide grounds, including the validity of the 3rd respondent's lease, the trial judge's alleged misapplication of the law on issuance of leases, and the striking out of the applicants' replying affidavit

Reasoning

The court applied the Kinyanjui test that an arguable appeal need not necessarily succeed but must not be frivolous. It identified at least one bona fide arguable ground from the draft memorandum of appeal challenging the validity of the 3rd respondent's title and the trial court's procedural rulings, while expressly avoiding definitive findings that could embarrass the bench hearing the main appeal.

p. 4
02

Whether the intended appeal would be rendered nugatory if the injunction is refused

Holding

The appeal would not be rendered nugatory because any prejudice is reversible: a fresh lease was issued to the 3rd respondent and can be cancelled if the appeal succeeds, and damages would adequately compensate the applicants

Reasoning

The court weighed the peculiar circumstances: the deceased's 54-year lease expired in 2004, over 19 years before the application, and a new 99-year lease was issued to the 3rd respondent. Since cancellation of the subsequent lease could reverse any success on appeal and damages would be an adequate remedy, the nugatory threshold was not met and the application failed.

p. 4

Legal principles established

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  • To succeed on an application under Rule 5(2)(b), an applicant must show the appeal or intended appeal is arguable (not frivolous) and that it would be rendered nugatory if stay or injunctive relief is refused
  • An application for injunction under Rule 5(2)(b) invokes the equitable jurisdiction of the Court and must be granted on equitable principles
  • Whether an appeal will be rendered nugatory depends on whether what is sought to be stayed is reversible, or if not reversible, whether damages will reasonably compensate the aggrieved party
  • In assessing nugatory prejudice the court must balance the conflicting claims of both sides within the circumstances of each case

Court orders

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  1. 1.Dismissal of the applicants' application dated 28th February, 2024
  2. 2.No orders as to costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 159
  • Court of Appeal Rules, 2022Rule 5(2)(b)

Cases cited (9)

  • Stanley Kangethe Kinyanjui v Tony Ketter & 5 Others
    [2013] eKLR
  • Reliance Bank Ltd. v Nortake Investments Ltd
    [2002] 1 EA 227
  • Nairobi City Council v Tom Ojienda & Associates
    [2022] KECA 1326
  • Kenya Tea Growers Association & Another v Kenya Plantation & Agricultural Workers Union
    [2012] eKLR
  • Joseph Mwangi Kamau v Jacob Ngigi Kanini & 3 Others
    [2019] eKLR
  • Kenya Shell Limited v Benjamin Karuga Kibiru & Another
    [1986] eKLR
  • Equity Bank Limited v West Link Mbo Limited
    Civil Appeal No. Nai 78 of 2011 (unreported)
  • Anne Wanjiku Kibeh v Clement Kungu Waibara and IEBC
    [2020] eKLR
  • Eric Makokha & 4 Others v Lawrence Sagini & 2 Others
    [1994] eKLR
On appeal from
Environment and Land Court
ELC. No. E022 of 2023
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules, 2022 and Article 159 of the Constitution

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, "Ndambuki & another (Suing as administrators to the Late Gregory Ndambuki) v National Land Commission & 2 others (Civil Application E092 of 2024) [2024] KECA 534 (KLR)", Case Analysis (2024). . Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/534/eng@2024-05-09

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