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ELCDismissedAppeal No. 35 of 2020· [2021] KEELC 3651 (KLR)

Agai Ochom v Seventh Day Adventist Church (East Africa Limited) (Sda Church) [2021] KEELC 3651 (KLR)

Environment and Land Court
18 March 2021
1,126 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court in Kisumu refused to protect a land claimant because he could not prove ownership or show harm that money couldn't fix.

What this practically means

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Executive summary

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By a notice of motion dated 15 September 2020 brought under Order 42 Rule 6 of the Civil Procedure Rules 2010, the appellant sought a temporary injunction restraining the Respondents from dealing with, trespassing on, fencing, selling, constructing on or evicting him from L.R. No. Kisumu Kanyakwar 'B'/483 and L.R. No. 15037/2,3,4,5,6 & 7, together with a stay of execution of the ruling delivered on 27 August 2020 and a stay of proceedings in Kisumu Chief Magistrate's Court ELC No. 21 of 2020, pending the hearing and determination of Appeal No. 35 of 2020. The Respondents opposed the application, arguing that a similar application had been dismissed by the lower court, that the two parcels are distinct with no encroachment, and that the appellant had neither shown a prima facie case with a probability of success nor irreparable harm not compensable in damages, nor the balance of convenience. Ombwayo J, exercising appellate jurisdiction, applied the Nguruman test and held that the appellant, whose property claim was contradicted by the registration of the land in the Respondent's name, had failed to demonstrate a prima facie case or irreparable injury. The injunction was dismissed. The stay of proceedings was refused as prejudicial to the lower court's expeditious hearing, and the stay of execution was held superfluous because the order dismissed below was negative and cannot be stayed. The entire application was dismissed with costs to the Respondents.

Key legal issues

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01

Whether the appellant established a prima facie case with a probability of success for a temporary injunction pending appeal

Holding

No prima facie case was established as the property is registered in the Respondent's name and the appellant gave no proof of ownership

Reasoning

Applying Order 42 Rule 6(6) and the Nguruman test, the applicant must show a clear and unmistakable right, threatened materially and substantively, on a balance of probabilities. The appellant produced no proof of ownership of the suit parcels, which are registered in the Respondent's name, and could not show his appeal raised weighty issues of law and fact.

p. 2
02

Whether irreparable injury not compensable in damages was demonstrated

Holding

The appellant failed to show irreparable injury that damages could not compensate

Reasoning

The Nguruman threshold requires an urgent necessity to prevent irreparable damage from the invasion of the right. The court found the appellant had not demonstrated that the injury he was likely to suffer was irreparable or incapable of being compensated by an award of damages, so this limb of the injunction test also failed.

p. 2
03

Whether stay of execution and stay of proceedings should issue pending appeal

Holding

Both prayers were refused; stay of execution was superfluous and stay of proceedings would prejudice the lower court's hearing

Reasoning

Under Order 42 Rule 6, a negative order cannot be stayed because there is nothing to execute. Staying proceedings in the lower court would prejudice the fair and expeditious hearing of the matter there, so the court declined to grant either prayer.

p. 2

Legal principles established

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  • A court exercising appellate jurisdiction may grant an injunction pending appeal where the applicant has an appeal raising weighty issues and shows a prima facie case with likelihood of success
  • A negative or dismissal order cannot be stayed

Court orders

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  1. 1.The application for injunction is dismissed
  2. 2.The application for stay of proceedings is dismissed
  3. 3.The prayer for stay of execution is not granted, being superfluous
  4. 4.The application is dismissed with costs

Authorities

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Legislation

  • Civil Procedure Rules 2010Order 42 Rule 6(1)-(6)

Cases cited (2)

  • Machupaper International Ltd vs Korr
    (1985) eKLR
  • Nguruman Limited vs. Jan Bonde Nielsen & 2 Others
    [2014] eKLR
On appeal from
Kisumu Chief Magistrate's Court (ELC No. 21 of 2020)
ELC No. 21 of 2020
Jurisdiction invoked
Order 42 Rule 6 of the Civil Procedure Rules 2010 (appellate jurisdiction of the High Court/ELC to grant stay and injunction pending 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, "Agai Ochom v Seventh Day Adventist Church (East Africa Limited) (Sda Church) [2021] KEELC 3651 (KLR)", Case Analysis (2021). Appeal No. 35 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3651/eng@2021-03-18

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