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ELCDismissedNotice of Motion dated 18th February 2020 (appeal against ruling in Voi ELC PMCC No. 7 of 2019)· [2020] KEELC 711 (KLR)

John J. Mchalu v Teresia Warware Nguu & 6 others [2020] KEELC 711 (KLR)

High Court of Kenya
2 November 2020
1,523 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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The High Court refused to block land dealings pending appeal because the appellant couldn't show the appeal was strong or urgent — land still exists after a case ends.

What this practically means

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Executive summary

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This ruling of the High Court at Mombasa (C.K. Yano, J) determined a Notice of Motion dated 18th February 2020 by John J. Mghalu, the appellant, arising from an appeal against a ruling of D. Wangeci, SPM, delivered on 2nd December 2019 in Voi ELC PMCC No. 7 of 2019, dismissing his suit and injunction application for want of jurisdiction. The appellant sought an interlocutory injunction restraining the respondents from dealing with Plots Nos. 2879, 2881, 2886, 2880, 4057 and 4058 Ndara 'A' ADJ/Section pending appeal, and a stay of the trial court proceedings, though he abandoned the stay prayer. The respondents opposed via grounds of opposition, arguing that a similar application had been dismissed and that the application was frivolous and an abuse of process. The court framed a single issue: whether the appellant demonstrated a prima facie case for an injunction pending appeal. Relying on Order 42 Rule 6 of the Civil Procedure Rules and Section 79G of the Civil Procedure Act, the court confirmed it had jurisdiction, the memorandum of appeal having been filed within 30 days. Applying Giella v Cassman Brown and Patricia Njeri v National Museum of Kenya, the court held the appellant had not shown an arguable appeal or that the appeal would be rendered nugatory, noting the suit land would still exist post-appeal and the ownership dispute remained pending before the Minister for Lands and Settlement. The motion was dismissed with costs to the respondents.

Key legal issues

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01

Jurisdiction to grant injunction pending appeal

Holding

The court had jurisdiction because the appeal was filed within the 30-day period under Section 79G of the Civil Procedure Act

Reasoning

Order 42 Rule 6 empowers the High Court in its appellate jurisdiction to grant a temporary injunction provided the procedure for instituting the appeal has been complied with. The impugned decision was delivered on 2nd December 2019 and the memorandum of appeal filed on 11th December 2019, within the 30 days prescribed by Section 79G. Compliance was not in doubt, so the court was seized of the matter.

p. 2
02

Whether the appellant established a prima facie case and irreparable damage for an injunction pending appeal

Holding

The appellant failed to demonstrate that the appeal was arguable or that it would be rendered nugatory

Reasoning

Applying Giella v Cassman Brown and Patricia Njeri & 3 Others v National Museum of Kenya, the court assessed whether the appeal raised serious questions without delving into the merits. The suit plots were unsurveyed and unregistered and the ownership dispute was still pending before the Minister for Lands and Settlement. Land would still exist post-appeal, so damages or the appeal itself would not be rendered nugatory.

p. 3

Legal principles established

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  • The High Court in exercise of its appellate jurisdiction may grant a temporary injunction under Order 42 Rule 6 provided the procedure for instituting the appeal from the subordinate court has been complied with
  • An application for injunction pending appeal is determined on the Giella v Cassman Brown principles, considering whether the appeal is arguable and would be rendered nugatory

Court orders

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  1. 1.Notice of motion dated 18th February 2020 dismissed with costs to the respondents
  2. 2.Prayer 4 (stay of proceedings in Voi ELC PMCC No. 7 of 2019) abandoned by the appellant

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3A, 63(e), 79G
  • Civil Procedure RulesOrder 42 Rule 6

Cases cited (2)

  • Giella –v- Cassman Brown
    (1973) EA 358
  • Patricia Njeri & 3 Others –v- National Museum of Kenya
    (2004) eKLR
On appeal from
Voi Environment and Land Principal Magistrate's Court
ELC PMCC No. 7 of 2019
Jurisdiction invoked
Order 42 Rule 6 of the Civil Procedure Rules; Section 79G of the Civil Procedure Act (appellate jurisdiction over subordinate court)

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, "John J. Mchalu v Teresia Warware Nguu & 6 others [2020] KEELC 711 (KLR)", Case Analysis (2020). Notice of Motion dated 18th February 2020 (appeal against ruling in Voi ELC PMCC No. 7 of 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/711/eng@2020-11-02

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