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)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the intended appeal is arguable
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
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.
Whether the intended appeal would be rendered nugatory if the injunction is refused
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
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.
Legal principles established
#- 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
#- 1.Dismissal of the applicants' application dated 28th February, 2024
- 2.No orders as to costs
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.