Kamau & another (Administrators of the Estate of the Late Lucy Nyambura alias Rachael Nyambura Kamau) v Gathecha & another
The bottom line
#The Court of Appeal refused to protect a Ruiru land parcel because it had already been subdivided and no longer exists.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the applicants have an arguable appeal under Rule 5(2)(b)
- 2.Whether the intended appeal would be rendered nugatory absent an injunction
- 3.Whether an order of stay of proceedings in ELC Case No. 136 of 2020 should issue
Key legal issues
#Arguable appeal under Rule 5(2)(b)
The applicants failed to demonstrate an arguable appeal; the suit property no longer existed having been sub-divided, and the claim of the 1st respondent's unknown financial capacity was unsupported by evidence.
The court examined the draft memorandum of appeal and found the applicants sought an injunction over Ruiru/Kiu Block 2/4268, which the 1st respondent deposed had been sub-divided into 10 plots owned by non-parties. The applicants did not controvert this in the further affidavit. Their nugatory claim rested on an unsupported assertion of the 1st respondent's financial incapacity, which they admitted at the hearing had no evidential basis.
Stay of proceedings
Stay of proceedings refused because the ELC court had become functus officio after judgment, only execution of taxed costs remained, and no stay of execution was sought.
The court applied the test in David Morton Silverstein v Atsango Chesoni, noting the judgment was delivered on 28th November 2022, the party and party bill of costs had been taxed, and the 1st respondent had moved to execution. There were no live proceedings to stay; the applicants had not sought stay of execution nor demonstrated irregularity in the taxation proceedings.
Legal principles established
#- An applicant under Rule 5(2)(b) must satisfy both limbs - arguable appeal and nugatory - and failing the first limb the application must fail.
- A court will not issue injunctive orders against non-existent property; such orders are issued in vain.
- Stay of proceedings is a grave remedy to be entertained only in the most deserving cases as it impedes the right to expeditious trial.
Court orders
#- 1.The applicants' motion dated 1st July 2024 is dismissed in its entirety
- 2.Costs of the application to the 1st respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the judgment
Wrote the judgment
- On appeal from
- Environment & Land Court at Nairobi
- Nairobi ELC Case No. 136 of 2020
- Jurisdiction invoked
- Article 159 of the Constitution of Kenya 2010; Sections 3A and 3B of the Appellate Jurisdiction Act, CAP 3; Rule 5(2)(b) of the Court of Appeal Rules, 2022
Relief refused
#Injunction restraining the respondents from dealing with parcel Ruiru/Kiu Block 2/4268 pending the intended appeal
No arguable appeal; the suit property was sub-divided into plots owned by third parties and no longer exists, so an injunction would issue in vain; nugatory limb also failed
Stay of further proceedings arising from the judgment and decree in ELC Case No. 136 of 2020
The ELC court is functus officio having rendered judgment; only execution of taxed costs remains and no stay of execution was sought
Costs
Application dismissed in its entirety with costs to the 1st respondent.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The totality of our findings therefore is that the applicants' motion dated 1st July 2024 is without merit and the same is hereby dismissed in its entirety with costs to the 1st respondent.
if this Court were to go ahead and issue injunctive orders against non-existent property, the same would be tantamount to issuing court orders in vain; a position that this Court frowns upon.
We are alive to the fact that stay of proceedings is a grave matter, to be entertained only in the most deserving cases as it impedes the right to expeditious trial.
An applicant must satisfy the Court on both the twin principles.
Issues in the judgment
#The block quotation from David Morton Silverstein v Atsango Chesoni is incomplete and runs directly into the court's own reasoning without a closing quotation mark.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kamau & another (Administrators of the Estate of the Late Lucy Nyambura alias Rachael Nyambura Kamau) v Gathecha & another", Case Analysis (2024). Civil Application E342 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1948/eng@2024-12-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.