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Court of AppealDismissedCivil Appeal No. E083 of 2024 (Motion dated 24th June 2024)· [2024] KECA 1759 (KLR)

Brookshill Limited & another v National Land Commission & 3 others; Omar & 2 others (Interested Parties) (Civil Application E072 of 2024) [2024] KECA 1759 (KLR)

Court of Appeal of Kenya
6 December 2024
AMA. K. MurgorKLDr. K. I. LaibutaGOG. V. Odunga
3,141 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Court of Appeal refused to protect Brookshill's Diani Beach properties pending appeal because any loss could be paid as money compensation.

What this practically means

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Executive summary

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Brookshill Limited and Ashbrook Limited petitioned the Environment and Land Court at Kwale challenging the County Government of Kwale's suspension of construction approvals over title Nos. Kwale/Diani Beach Block/1526 and 1527, and defending their title against claims of historical injustice and fraud. By a judgment delivered on 3rd May 2023, Dena, J. dismissed the petition, allowed the County Government's cross-petition, ordered rectification of the register to expunge the applicants' entries, and declared the suit land public land that had reverted to the 1st respondent. The applicants filed an intended appeal on eight grounds and moved the Court of Appeal under rule 5(2)(b) of the Court of Appeal Rules seeking an injunction and maintenance of the status quo pending appeal. The applicants argued they had an arguable appeal and would suffer irreparable loss not compensable by damages. The 1st respondent and the Interested Parties opposed, pointing out that the properties had been reallocated to the 1st respondent and to third parties, and that the applicants' structures had been demolished. The Court, coram Murgor, Laibuta and Odunga, JJA, in a single judgment, applied the twin principles governing rule 5(2)(b) applications. It accepted that the intended appeal was arguable, since even one sufficient ground meets that threshold, but held that the applicants failed to show that the appeal would be rendered nugatory absent the orders, since any loss was compensable. The Court also found the Motion overtaken by events, without prejudice to the appeal and any claim for compensation. The Motion was dismissed with costs to the 1st respondent and the Interested Parties. The intended appeal remains pending.

Key legal issues

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01

Twin principles for relief under rule 5(2)(b)

Holding

The applicants satisfied the first limb (arguability) but failed the second limb (nugatory-ness), so the relief could not issue

Reasoning

The court restated the twin principles as settled. The grounds of appeal revealed substantive issues of law and fact deserving inquiry, satisfying arguability. However, the applicants did not demonstrate that the loss they might suffer, such as the quantifiable value of the suit properties or demolished structures, could not be compensated by the 1st respondent if the appeal succeeded.

p. 6
02

Effect of events overtaking the application

Holding

Where the subject matter has changed hands and structures demolished, a Motion may be overtaken by events, without prejudice to the applicants' right to pursue the appeal

Reasoning

The registration of the applicants had been cancelled in execution of the trial court decree, the structures demolished, and the properties reallocated to the 1st respondent and third parties. The court held the Motion was overtaken by events but preserved the applicants' right to pursue the appeal and, if successful, seek compensation.

p. 6

Legal principles established

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  • An applicant for stay of execution, preservative orders or injunctive relief under rule 5(2)(b) of the Court of Appeal Rules must demonstrate an arguable appeal and that the appeal would be rendered nugatory if the orders are not granted
  • A single arguable ground of appeal suffices to satisfy the first limb of the twin principles

Court orders

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  1. 1.Notice of Motion dated 24th June 2024 dismissed
  2. 2.Costs of the Motion awarded to the 1st respondent and the Interested Parties

Authorities

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Legislation

  • Constitution of KenyaArticle 47
  • Court of Appeal RulesRule 5(2)(b)
  • Fair Administrative Actions Act
  • National Land Commission Act

Cases cited (8)

  • Githunguri v Jimba Credit Corporation Limited
    [1988] eKLR
  • Equity Bank Limited v West Link Tours Mbo Limited
    [2013] eKLR
  • Trust Bank Limited & Another v Investech Bank Limited & 3 Others
    [2000] eKLR
  • Stanley Kang’ethe Kinyanjui v Tony Ketter & 5 Others
    [2013] eKLR
  • Reliance Bank Ltd v Norlake Investments Limited
    [2002] EA 227
  • Anne Wanjiku Kibeh v Clement Kungu Waibara and IEBC
    [2020] eKLR
  • Yellow Horse Inns Limited v A. A. Kawir Transporters & 4 Others
    [2014] eKLR
  • University of Nairobi v Ricatti Business of East Africa
    [2020] eKLR
On appeal from
Environment and Land Court at Kwale
Petition No. 25 of 2021
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules (injunction and preservative orders pending appeal)

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, "Brookshill Limited & another v National Land Commission & 3 others; Omar & 2 others (Interested Parties) (Civil Application E072 of 2024) [2024] KECA 1759 (KLR)", Case Analysis (2024). Civil Appeal No. E083 of 2024 (Motion dated 24th June 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1759/eng@2024-12-06

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