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ELCAllowedNot stated in the judgment as provided· [2021] KEELC 3399 (KLR)

Vincent Orinda Nyambane & another v Daniel Nyangaresi Orinda & another [2021] KEELC 3399 (KLR)

High Court of Kenya
5 May 2021
JOJ. M. ONYANGO
1,372 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The High Court in Kisii blocked anyone from touching disputed land in Kisii until an appeal is heard, because the appeal was filed on time.

What this practically means

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Executive summary

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This was a Notice of Motion dated 5th October 2020 in which the Appellants sought a temporary injunction against the Respondents pending the hearing of their appeal against the judgment of Hon. E. A. Kimutai, Principal Magistrate, Keroka, delivered on 2nd October 2020. The dispute concerned land parcel No. EAST KITUTU/KEBIRICHI/3155, of which the 1st Appellant is the registered owner and occupier with the 2nd Appellant. The Respondents opposed, contending that the registration was fraudulently obtained from the Registrar, that the suit land is ancestral land originally comprising parcel No. EAST KITUTU/KEBIRICHI/794 registered in the name of the 1st Appellant's late father, who held it in trust for his step brothers and the family of his uncle Kebande, and that the application was an abuse of process founded on non-disclosure of material facts. The application was canvassed by written submissions. The court framed a single issue: whether an injunction pending appeal should issue. Relying on Order 42 Rule 6(6) of the Civil Procedure Rules and section 79G of the Civil Procedure Act, the court found the appeal was filed within thirty days of the impugned judgment, conferring jurisdiction. Applying the Patricia Njeri principles and noting the subsisting, unchallenged stay orders issued by the trial court, the court found the requirements met. The respondents' grounds were found weighty but reserved for the appeal hearing. The court allowed the application, issued the temporary injunction restraining interference with the suit parcel, and ordered that costs of the application abide the appeal.

Key legal issues

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01

Jurisdiction to grant an injunction pending appeal

Holding

The court had jurisdiction because the memorandum of appeal was filed within the 30-day period set by section 79G of the Civil Procedure Act, satisfying Order 42 Rule 6(6).

Reasoning

The judgment of the trial court was delivered on 2nd October 2020 and the memorandum of appeal was filed on 7th October 2020, about fifteen days later, hence within the statutory thirty days. The court therefore held that the appellants duly complied with the procedure for instituting an appeal and it had jurisdiction to entertain the application.

p. 2
02

Whether the requirements for an injunction pending appeal were met

Holding

The court found that counsel's arguments met the Patricia Njeri requirements and, taking judicial notice of subsisting stay orders from the trial court, granted the injunction.

Reasoning

The court found the appellants' arguments met the Patricia Njeri requirements. It took judicial notice of the stay orders issued by the trial court in the presence of all parties, which had not lapsed and remained unchallenged, and saw no reason to interfere with them. The respondents' weighty grounds could only be canvassed at the hearing of the appeal.

p. 2

Legal principles established

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  • The High Court in exercise of its appellate jurisdiction may grant a temporary injunction provided the procedure for instituting an appeal from a subordinate court has been complied with
  • The principles for grant of an injunction pending appeal are those in Patricia Njeri & 3 Others v National Museum of Kenya, including the Giella v Cassman Brown principles
  • Judicial discretion in interlocutory injunction applications must be exercised on the basis of the law and evidence

Court orders

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  1. 1.A temporary injunction issued against the Respondents, their agents, servants, family members and/or any persons acting on their behalf from entering into, cultivating, tilling, cutting down of any trees, erecting any structures or in any manner interfering or dealing with land parcel No. EAST KITUTU/KEBIRICHI/3155
  2. 2.The costs of the application shall abide the Appeal

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 42 Rule 6(6)
  • Civil Procedure ActSection 79G

Cases cited (3)

  • Giella v Cassman Brown
    [1973] EA 358
  • Patricia Njeri & 3 Others v National Museum of Kenya
    [2004] eKLR
  • Mrao v First American Bank of Kenya Limited & 2 others
    2003 KLR 125
On appeal from
Principal Magistrate's Court, Keroka
Not stated
Jurisdiction invoked
Order 42 Rule 6(6) of the Civil Procedure Rules, 2010 read with Section 79G of the Civil Procedure Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Vincent Orinda Nyambane & another v Daniel Nyangaresi Orinda & another [2021] KEELC 3399 (KLR)", Case Analysis (2021). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3399/eng@2021-05-05

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