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ELCPartially AllowedNot stated in the judgment (Appeal from SRMCC No. 4 of 2019)· [2021] KEELC 2747 (KLR)

Antony Maina Nduati v Samuel Mwangi Nduati & another [2021] KEELC 2747 (KLR)

High Court of Kenya (Environment and Land jurisdiction, Murang'a)
24 June 2021
JKJ. G. Kemei
2,304 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~9 min to read original · ~4 min brief

The bottom line

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A Kenyan land buyer won injunctions protecting his land pending appeal, but was still ordered to pay the other side's costs.

What this practically means

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Executive summary

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The Applicant bought ¼ acre to be excised from parcel LOC.16/KIGORO/1737 from the 1st Respondent in 2014, paying the full purchase price, but the transfer was never effected. The 1st Respondent instead sold the whole parcel to the 2nd Respondent in 2018. The Applicant sued both in SRMCC No. 4 of 2019; the subordinate court, in a judgment delivered on 11/2/2021, found him entitled to ¼ acre and ordered the 1st Respondent to transfer it - an order he considered unenforceable since the land stood registered in the 2nd Respondent's name. He appealed and moved this Court, by Notice of Motion dated 15/2/2021 under Order 42 Rule 6 of the Civil Procedure Rules, for temporary injunctions restraining the 2nd Respondent from interfering with his possession of parcel LOC.16/KIGORO/2428 and from transferring, alienating or dealing with parcels 2428 and 2429 pending the appeal. The 2nd Respondent opposed, contending he was a purchaser for value with no privity of contract with the Applicant, and that the Applicant's remedy lay in a refund from the 1st Respondent; he also invoked the Giella v Cassman Brown threshold. Applying Giella, Mrao and Nguruman, the court found the appeal arguable and that damages would not suffice, as a successful appeal could amount to a paper judgment. It granted both injunctions pending the hearing of the appeal but, unusually, ordered costs in favour of the Respondents.

Key legal issues

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01

Whether the Applicant established a prima facie case with a probability of success

Holding

Yes - the lower court found the Applicant entitled to ¼ acre and the appeal challenging the non-cancellation of the subdivisions is not frivolous

Reasoning

The court noted the lower court had found the Applicant entitled to the land and that the appeal challenges the failure to order cancellation of the subdivisions and transfer. Such an appeal is arguable, and an injunction was warranted to prevent the appeal being rendered nugatory.

p. 3
02

Whether the Applicant would suffer irreparable harm not compensable by damages

Holding

Yes - without an injunction a successful appeal could result in a paper judgment

Reasoning

The court reasoned that if the 2nd Respondent were free to deal with the land, a successful appeal would be of no value since the land would be gone, so damages would be inadequate and the substratum of the appeal should be preserved.

p. 3

Legal principles established

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  • Under Order 42 Rule 6 the High Court may grant a temporary injunction in the exercise of its Appellate jurisdiction provided the procedure for instituting the appeal has been complied with
  • At an interlocutory stage the court does not determine the merits of the appeal; where a decision is not frivolous, injunctive relief may issue to avoid rendering the appeal nugatory

Court orders

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  1. 1.A temporary order of injunction restraining the 2nd Respondent from trespassing, occupying, staying on or interfering with the Plaintiff's quiet possession, use and occupation of parcel LOC.16/KIGORO/2428 pending hearing of the Appeal
  2. 2.A temporary injunction restraining the 2nd Respondent from transferring, alienating, selling, charging or in any way dealing with parcels LOC 16/KIGORO/2428 AND LOC 16/KIGORO/2429 pending the hearing of the Appeal
  3. 3.Costs in favour of the Respondents

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 6

Cases cited (3)

  • Giella vs Cassman Brown & Co Limited
    (1973) EA 358
  • Mrao vs First American Bank of Kenya Ltd & Two Others
    C.A. No. 39 of 2002 (2003 EKLR)
  • Nguruman Limited Vs Jan Bonde Nielsen & 2 others
    EKLR (no citation number given)
On appeal from
Senior Resident Magistrate's Court
SRMCC No. 4 of 2019
Jurisdiction invoked
Order 42 Rule 6 of the Civil Procedure Rules - temporary injunction in exercise of Appellate jurisdiction

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, "Antony Maina Nduati v Samuel Mwangi Nduati & another [2021] KEELC 2747 (KLR)", Case Analysis (2021). Not stated in the judgment (Appeal from SRMCC No. 4 of 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2747/eng@2021-06-24

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