Lydia Munyatta M’aruyaru v Raphael Mukilam’itaru [2021] KEELC 1326 (KLR)
The bottom line
#A Kenyan land owner appealing a case lost her bid to block the other side, but the court froze the current situation only until a deadline to file the appeal.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction to grant injunction and inhibition pending appeal
The application, being premised on Order 40, was misconceived as that Order applies to suits, not appeals; the correct provision is Order 42 Rule 6(6)
The court held that Order 40 permits injunctions only pending hearing of a suit. Assuming Order 42 Rule 6(6) was intended, the applicant had to show the appeal was not frivolous, that greater hardship would not be inflicted, and that refusal would render the appeal nugatory, applying Giella v Cassman Brown. The applicant failed: she had no title deed, the lower court pleadings were not attached, the judicial review decision was not exhibited, and the lower court had noted non-joinder of a crucial party.
Whether the applicant established entitlement to injunction and inhibition
The applicant failed to meet the applicable principles; the motion was declined but status quo was ordered in the interests of justice
The applicant held no title as against the registered respondent, did not attach the lower court pleadings to enable the court ascertain the claim, and did not attach the High Court judicial review decision allegedly quashing the Land Adjudication Officer's decision. The lower court ruling had also noted non-joinder of a crucial party. In the interests of justice, however, the court ordered maintenance of status quo coupled with timelines for filing the Record of Appeal.
Legal principles established
#- An injunction under Order 40 of the Civil Procedure Rules may only issue pending hearing and determination of a suit, not pending an appeal
- Temporary injunction pending appeal is governed by Order 42 Rule 6(6) and its principles
Court orders
#- 1.Maintenance of status quo as at the filing of the appeal
- 2.Applicant to file and serve the Record of Appeal within 30 days from the date of the order
- 3.Appeal to be listed for hearing within 60 days upon filing of the record of appeal, failing which the orders of status quo shall stand vacated
- Jurisdiction invoked
- Sections 2, 13, 18 and 19 of the Environment and Land Court Act and Order 40 Rule 2, Order 51 Rule 1 of the Civil Procedure Rules; Section 68 of the Land Registration Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Lydia Munyatta M’aruyaru v Raphael Mukilam’itaru [2021] KEELC 1326 (KLR)", Case Analysis (2021). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1326/eng@2021-10-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.