Amos Njau Mureithi & Rachael Wanjiku Mureithi (Administrators of the Estate of Evanston Mureithi Kiboi - Deceased) & another v Maina & 4 others (Civil Application E359 of 2023) [2024] KECA 889 (KLR)
The bottom line
#Kenya's Court of Appeal blocked the sale of disputed land pending appeal, confirming even one genuine issue can freeze property transactions.
What this practically means
#Executive summary
#Key legal issues
#Whether the intended appeal from the dismissal of the injunction application by the ELC is arguable
The Court held the appeal arguable because the applicants raised bona fide questions on the root of the 3rd and 4th respondents' title, including that the alleged vendor was dead at the time of the purported sale, the original title remained with the applicants, the 2007 official search still showed the deceased as proprietor, and the 1st and 2nd respondents had remained silent.
The Court reiterated that an arguable appeal need only raise an issue worthy of full consideration and need not succeed. The applicants' contentions regarding fraud in the chain of title, the retention of the original title deed, the 2007 official search, and the silence of the 1st and 2nd respondents despite substituted service were not idle or frivolous but eminently arguable, warranting full consideration at the hearing of the appeal.
Whether the intended appeal would be rendered nugatory absent an injunction
The Court was satisfied the appeal risked being rendered nugatory because the 3rd and 4th respondents intended to alienate the developments on the suit properties to third parties, which would convolute the dispute before the appeal was heard.
The respondents had indicated an intention to alienate developments on the suit properties to third parties. Involving third parties before the hearing and determination of the appeal would further convolute the dispute and potentially place the properties beyond the applicants' reach, thereby prejudicing the beneficiaries of the deceased's estate and rendering the appeal nugatory.
The interaction between the applicants' claim of fraud and the respondents' assertion of indefeasible title as bona fide purchasers
The Court did not make definitive findings on the merits, holding that such pronouncements are the province of the Court at the hearing of the appeal; the competing claims of fraud and bona fide purchase were left for full trial.
The Court reminded itself that at the interlocutory stage it cannot make definitive pronouncements on the chances of the intended appeal. The respondents maintained they were bona fide purchasers for value without notice holding indefeasible title under section 26(1) of the Land Registration Act, but the alleged fatal defects in the root of their title, including a sale by a dead vendor, were issues properly reserved for the appeal.
Legal principles established
#- An applicant under rule 5(2)(b) must demonstrate both an arguable appeal and that the appeal would be rendered nugatory absent the orders sought; proving only one limb does not suffice.
- An arguable appeal is no more than one that is not frivolous; it need not raise a multiplicity of issues, and even one bona fide issue will suffice.
- An arguable appeal need not ultimately succeed; it is enough that it raises an issue worthy of full consideration by the Court.
Court orders
#- 1.Order of injunction restraining the 3rd and 4th respondents from selling or transferring the suit properties until the intended appeal is heard and determined
- 2.Applicants directed to file and serve the record of appeal within forty-five days from the date of the ruling
- 3.Costs of the application to abide the outcome of the intended appeal
- On appeal from
- Environment and Land Court
- ELC Suit No. 105 of 2022 (Kajiado)
- 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, "Amos Njau Mureithi & Rachael Wanjiku Mureithi (Administrators of the Estate of Evanston Mureithi Kiboi - Deceased) & another v Maina & 4 others (Civil Application E359 of 2023) [2024] KECA 889 (KLR)", Case Analysis (2024). Civil Application No. E352 of 2023 (Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/889/eng@2024-07-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.