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ELCOtherNot stated in the judgment· [2021] KEELC 1326 (KLR)

Lydia Munyatta M’aruyaru v Raphael Mukilam’itaru [2021] KEELC 1326 (KLR)

Environment and Land Court
27 October 2021
899 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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By notice of motion under Order 40 Rule 2 and Order 51 Rule 1 of the Civil Procedure Rules, Section 68 of the Land Registration Act and Sections 2, 13, 18 and 19 of the Environment and Land Court Act, the applicant sought a temporary injunction and inhibition over Parcel No. Tigania West Uringu II/1059 pending hearing and determination of an appeal against a lower court decision striking out her case for want of jurisdiction. She asserted prior occupation of land originally belonging to her father and alleged the respondent's registration was fraudulent, and relied on a judicial review decision (Meru HCC J.R. 59 of 2021) said to have quashed the Land Adjudication Officer's decision. The respondent opposed, asserting acquisition from 1966, lawful demarcation and registration with objections dismissed, and denied any threatened eviction or disposal. The court (Nzili J) framed two issues: jurisdiction to grant the orders pending appeal, and the applicable principles. It held that Order 40 applies only to injunctions pending a suit, with Order 42 Rule 6(6) governing injunctions pending appeal, incorporating the Giella v Cassman Brown principles. The applicant failed to satisfy those principles: she held no title, did not attach the lower court pleadings or the judicial review decision, and the lower court had noted non-joinder of a crucial party. The injunction and inhibition were refused, but in the interests of justice the court ordered maintenance of status quo as at the filing of the appeal, conditional on filing the Record of Appeal within 30 days and listing of the appeal within 60 days, failing which status quo would stand vacated. No costs order was made.

Key legal issues

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01

Jurisdiction to grant injunction and inhibition pending appeal

Holding

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)

Reasoning

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.

p. 1
02

Whether the applicant established entitlement to injunction and inhibition

Holding

The applicant failed to meet the applicable principles; the motion was declined but status quo was ordered in the interests of justice

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 1.Maintenance of status quo as at the filing of the appeal
  2. 2.Applicant to file and serve the Record of Appeal within 30 days from the date of the order
  3. 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

Authorities

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Legislation

  • Civil Procedure RulesOrder 40 Rule 2
  • Civil Procedure RulesOrder 51 Rule 1
  • Civil Procedure RulesOrder 42 Rule 6(6)
  • Land Registration ActSection 68
  • Environment and Land Court ActSections 2, 13, 18 and 19
  • Land Adjudication ActCap 284

Cases cited (6)

  • Giella –vs- Casman Brown
    (1973) EA 358
  • Mrao Ltd. –vs- First American Bank of Kenya Ltd
  • Philip Mwangi Githinji –vs- Grace Makarima Gichinji
    (2004) eKLR
  • Patricia Njeri & 3 Others –vs- National Museum of Kenya
    (2004) eKLR
  • Hannah Wangui Mathenge & 2 Others –vs- Rose Muthoni Mathenge
    (2017) eKLR
  • Panari Enterpries Ltd., Dorcas Muthoni & 2 Others –vs- Michael Ireri Ngari
    (2016) eKLR
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

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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, "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.