Homescope Properties & 1 other v David Gachuki & Pamela Odera (sued As Chairman & Secretary of Karen Ngong View Estate ) & 1 other
The bottom line
#Kenya's Court of Appeal refused to stop a ruling blocking an estate's access road, because the situation could easily be reversed if the appeal later succeeds.
What this practically means
#Executive summary
#Key legal issues
#Whether the intended appeal is arguable
The intended appeal is arguable, including on the interpretation of Section 9 of the Public Roads and Roads of Access Act, but arguability alone does not secure the orders
The Court found from the Memorandum of Appeal that the learned ELC Judge may have erred in his interpretation of Section 9 of the Public Roads and Roads of Access Act and in concluding that the contentious road is private. Citing Transouth Conveyors, it held one arguable ground suffices, and an arguable appeal need not necessarily succeed.
Whether the intended appeal would be rendered nugatory if the orders are not granted
The appeal would not be rendered nugatory because the position sought to be stayed or injuncted is reversible
It was common ground that the road through Karen Ngong View Estate is an alternative access route, Eve Gardens Estate having access through Jogoo Road. If the appeal succeeds, the barriers blocking access can be ordered removed and are easily removable. Both limbs of the rule 5(2)(b) test must be satisfied; the second failed.
Legal principles established
#- An applicant under rule 5(2)(b) need not establish many arguable grounds; a single arguable ground suffices
- Whether the success of an appeal will be rendered nugatory must be assessed on the circumstances of each particular case, considering whether what is sought to be stayed is reversible
Court orders
#- 1.The applicants' application dated 14th November 2023 is dismissed
- 2.No orders as to costs
- On appeal from
- Environment and Land Court
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules (stay of execution and injunction pending appeal)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Homescope Properties & 1 other v David Gachuki & Pamela Odera (sued As Chairman & Secretary of Karen Ngong View Estate ) & 1 other", Case Analysis (2024). Civil Application (rule 5(2)(b)) dated 14th November 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1410/eng@2024-10-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.