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Court of AppealDismissedCivil Application (Nairobi) arising from Nairobi ELC Constitution Petition No. E012 of 2023· [2024] KECA 950 (KLR)

Muthee v Mohamed & 7 others; Law Society of Kenya & 2 others (Interested Parties) (Civil Application E063 of 2024) [2024] KECA 950 (KLR)

Court of Appeal of Kenya
26 July 2024
2,221 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal refused to halt construction on disputed Eastleigh land, ruling that money compensation can adequately address eviction-related rights claims.

What this practically means

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Executive summary

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The applicant, David Muthami Muthee, filed a constitutional petition in the Environment and Land Court asserting rights over LR Eastleigh 36/VII/275 and simultaneously sought injunction and conservatory orders restraining the respondents from demolishing, excavating, constructing on, disposing of or transferring the property. The trial judge dismissed that application, holding the orders sought were overtaken by subsequent events. Aggrieved, the applicant filed a Notice of Appeal and brought the present Notice of Motion dated 15th February 2024 under rule 5(2)(b) of the Court of Appeal Rules seeking an injunction against further development, a stay of the ELC petition, or alternatively maintenance of status quo, pending an intended appeal. The respondents opposed on grounds including that the applicant had not proved ownership, had filed a prior appeal over the same subject matter, and had failed to demonstrate an arguable appeal or irreparable loss. Applying the established two-limb rule 5(2)(b) threshold, the Court found that whether the trial judge correctly exercised her discretion in declining the injunction might be arguable, though success remained uncertain. On the nugatory limb, the Court agreed with the respondents that the alleged rights violations arising from the applicant's eviction would more appropriately be compensated in damages at that juncture than by halting ongoing construction. The applicant having failed to satisfy the threshold requirements, the motion was dismissed with costs in the intended appeal.

Key legal issues

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01

Whether the intended appeal is arguable under rule 5(2)(b)

Holding

The Court found one ground arguably arguable - whether the trial judge correctly exercised her discretion to decline the injunction - but this alone did not carry the application.

Reasoning

The Court reviewed the record and found that the trial judge had declined the injunction because the applicant had already been evicted and development works were underway. Whether that discretion was rightly or wrongly exercised could be arguable, but the applicant still had to satisfy the second limb. The Court's treatment stops short of a definitive finding of arguability, framing success as uncertain.

p. 5
02

Whether the intended appeal would be rendered nugatory if interim relief was refused

Holding

The Court held the appeal would not be rendered nugatory because the applicant's constitutional claims could be adequately compensated in damages.

Reasoning

The applicant had filed a constitutional petition and simultaneously sought to restrain construction. The Court agreed with the respondents that the alleged rights violations arising from the eviction would be more appropriately compensated by damages at that juncture than by halting construction. Having failed both limbs, the application was dismissed with costs in the intended appeal.

p. 5

Legal principles established

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  • An applicant under rule 5(2)(b) must satisfy two thresholds: that the appeal or intended appeal is arguable, and that its success would be rendered nugatory if stay or interim relief is not granted.
  • An arguable appeal need not necessarily succeed; it is one that raises a bona fide issue worthy of consideration by the Court.
  • Where the violation alleged is of rights arising from the manner of eviction or removal from property, the appropriate remedy at an interlocutory stage may be damages rather than an order halting ongoing construction.

Court orders

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  1. 1.The Notice of Motion dated 15th February 2024 is dismissed as unmerited
  2. 2.Costs in the intended appeal

Authorities

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Legislation

  • Appellate Jurisdiction Actsections 3, 3A
  • Court of Appeal Rulesrule 5(2)(b)

Cases cited (5)

  • Republic vs Kenya Anticorruption Commission and 2 others
    [2009] eKLR
  • Kenya Tea Growers Association and Another versus Kenya Planters Agricultural Workers' Union
    Civil Application No. Nai 72 of 2001 (UR)
  • Somak Travels Ltd v Gladys Aganyo
    [2016] eKLR
  • George Gathuru Karanja v George Gathuru Thuo & 2 other
    [2019] eKLR
  • David Muthami Muthee v Attorney General; Charles Kimeli Muge (Interested Party)
    [2019] eKLR (ELC Suit No.1234 of 2016, formerly HCCC No.956 of 1997)
On appeal from
Environment and Land Court
Nairobi ELC Constitution Petition No. E012 of 2023 (ruling of 31st January 2024)
Jurisdiction invoked
Sections 3 and 3A of the Appellate Jurisdiction Act and rule 5(2)(b) of the Court of Appeal Rules

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Muthee v Mohamed & 7 others; Law Society of Kenya & 2 others (Interested Parties) (Civil Application E063 of 2024) [2024] KECA 950 (KLR)", Case Analysis (2024). Civil Application (Nairobi) arising from Nairobi ELC Constitution Petition No. E012 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/950/eng@2024-07-26

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