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ELCPartially AllowedNot stated in the judgment (Nakuru ELC suit; application dated 15th October 2019)· [2020] KEELC 1307 (KLR)

Henry Waithaka Wachira v Consolata Njeri Maingi & 13 others [2020] KEELC 1307 (KLR)

Environment and Land Court
24 September 2020
3,740 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~15 min to read original · ~4 min brief

The bottom line

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A Kenyan land court protected disputed property from sale or subdivision until an appeal is decided, provided the appellant files his appeal within 90 days.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Nakuru (J M Mutungi J) on the plaintiff/applicant's Notice of Motion dated 15th October 2019 seeking injunctions to preserve land parcels Dundori/Lanet Block 5/257, 5/261 and resultant subdivisions pending the applicant's intended appeal against a ruling of 30th September 2019 which dismissed his application to substitute himself for his deceased father, revive the abated suit, join further parties and restrain dealings with the land. The 1st defendant opposed, arguing the court lacked jurisdiction to grant an injunction after dismissing an earlier injunction application, relying on Order 42 Rule 6(6) and Bartholomew Mwanyungu v Florence Dean Karimi, and contending that no arguable appeal or irreparable loss was shown. The court held that, following Madhupaper International Ltd v Kerr and the Erinford principle, a trial judge retains jurisdiction to grant an injunction pending an appeal against his own refusal of one, since the questions are distinct. The judge declined to sit on appeal on his brother judge's ruling but found the intended appeal not frivolous. Noting that the suit was never heard on its merits and that disposal of the properties would render the appeal nugatory, the court allowed the application in terms of prayers (5), (7) and (8), conditional on the applicant filing and serving the record of appeal within 90 days, failing which the injunctions lapse and stand vacated. Costs of the application were ordered to abide the outcome of the intended appeal.

Key legal issues

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01

Jurisdiction to grant injunction pending appeal after dismissing an earlier injunction application

Holding

The court held it has jurisdiction, following Madhupaper International Ltd v Kerr and the Erinford principle, though each case turns on its own facts

Reasoning

The 1st defendant argued, relying on Bartholomew Mwanyungu and Order 42 Rule 6(6), that injunctions pending appeal lie only in appellate jurisdiction. The court rejected this, adopting the Erinford/Madhupaper line that the judge appealed from may preserve the status quo so the appeal is not nugatory, and distinguished the Yano decision as discretionary and fact-specific.

p. 4
02

Whether an injunction should issue on the facts

Holding

Yes - the suit was never heard on its merits, both the plaintiff's suit and the 1st defendant's counterclaim abated, and disposal of the properties pending appeal would render the appeal nugatory

Reasoning

The court weighed the hardship: defendants hold title and possession, but if the appeal succeeds the suit would be revived and re-opened; dissipating the properties to non-parties would cause greater prejudice. Preservation was therefore necessary, conditioned on diligent prosecution of the appeal by filing the record within 90 days.

p. 5
03

Limits of the trial judge's role vis-à-vis the decision to be appealed

Holding

The judge declined to sit on appeal on a brother judge's ruling; whether the ruling of 30th September 2019 was erroneous is for the Court of Appeal

Reasoning

The 1st defendant's replying affidavit essentially sought affirmation of the earlier ruling. The court held that a judge of concurrent first-instance jurisdiction cannot review a colleague's decision; that is the province of the Court of Appeal. On the material, the intended appeal could not be said to be frivolous.

p. 2

Legal principles established

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  • A trial court retains jurisdiction to grant an injunction pending an appeal against its own dismissal of an earlier injunction application; the two questions are distinct and there is no inconsistency in doing so
  • The object of a temporary injunction is preservation of the status quo so that a successful appeal is not rendered nugatory

Court orders

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  1. 1.Notice of Motion dated 15th October 2019 allowed in terms of prayers (5), (7) and (8), restraining subdivision, sale, charging, transfer or other dealings in Dundori/Lanet Block 5/257, 5/261 and the resultant subdivisions pending the hearing and determination of the intended appeal
  2. 2.Orders conditional on the Plaintiff/Applicant filing and serving the record of appeal within Ninety (90) days, failing which the injunctions automatically lapse and stand vacated
  3. 3.Costs of the application to abide the outcome of the intended appeal

Authorities

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Legislation

  • Civil Procedure RulesOrder 24 Rule 3
  • Civil Procedure RulesOrder 40 Rules 1(a) and 10(1)(a)
  • Civil Procedure RulesOrder 42 Rule 6 (including 6(6))
  • Civil Procedure RulesOrder 51 Rules 1-3
  • Civil Procedure ActSections 1A, 1B and 3A
  • Court of Appeal RulesRule 5(2) and Rule 75

Cases cited (10)

  • Madhupaper International Ltd -vs- Kern (Kerr) (1985) KLR 840
    (1985) KLR 840
  • Bartholomew Mwanyungu & 3 others -vs- Florence Dean Karimi (2019)
    (2019)
  • The Owner of the Motor Vessel “Lillian S” –vs- Caltex Oil (Kenya) Ltd (1989) KLR
    (1989) KLR
  • Bilha Mideva Buhuku -vs- Evelyne Kanyere (2016) eKLR
    (2016) eKLR
  • Joseph Macharia Nderitu -vs- NIC Bank (Kenya) Ltd & another, Nakuru HCCA No.6 of 2020
    Nakuru HCCA No.6 of 2020
  • Eringford Properties Ltd –vs- Chesire County Council (1974) 2 All ER 442
    (1974) 2 All ER 442
  • Anthony Raymond Cordeiro & 2 others -vs- Adriam Noel Carvllo & 5 others (2014) eKLR
    (2014) eKLR
  • Emma Muthoni Wambaa & Another –vs- Joseph Kibaara Kariuki, Mombasa HCCC No.274 of 2009
    Mombasa HCCC No.274 of 2009
  • Tronistik Union International & Another -vs- Jane Mbeyu & Another (1993) eKLR
    (1993) eKLR
  • Assanad -vs- Petitt (1989) KLR 241
    (1989) KLR 241
Jurisdiction invoked
Order 42 Rule 6, Order 40 Rules 1(a) and 10(1)(a), Order 51 Rules 1-3 of the Civil Procedure Rules and Sections 1A, 1B and 3A of the Civil Procedure Act; inherent jurisdiction of the trial court to preserve the subject matter of an intended 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, "Henry Waithaka Wachira v Consolata Njeri Maingi & 13 others [2020] KEELC 1307 (KLR)", Case Analysis (2020). Not stated in the judgment (Nakuru ELC suit; application dated 15th October 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1307/eng@2020-09-24

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