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ELCAllowedNot stated in the excerpt (Machakos ELC Appeal)· [2022] KEELC 901 (KLR)

Uthasyo Mutheke v James Mwanthi Muthembwa [2022] KEELC 901 (KLR)

Environment and Land Court
9 March 2022
COChristine Ochieng
1,322 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court in Machakos stopped all dealings with disputed land pending appeal, protecting the registered owner from sale or interference.

What this practically means

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Executive summary

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This was a Notice of Motion dated 11th May 2021 by the Appellant, Uthasyo Mutheke, seeking a temporary injunction restraining the Respondent, James Mwanthi Muthembwa, from entering, trespassing upon, selling, alienating or dealing with land parcel MACHAKOS/KONZA NORTH BLOCK 1/440 pending the hearing and determination of his appeal against a judgment dated 22nd January 2020 in which the Chief Magistrate's Court dismissed his suit for a permanent injunction. The trial court had found that the Certificate of Confirmation of Grant under which Grace Mwelu Muthembwa derived capacity to sell the suit property to the Appellant had been revoked, leaving her without capacity to transfer. The Appellant argued, relying on Section 93(1) of the Law of Succession Act and Giella v Cassman Brown, that he was the registered proprietor since 2001, that his appeal was arguable, and that refusing an injunction would render it nugatory. The Respondent countered that no stay had been sought and he should enjoy the fruits of his judgment. The court, Christine Ochieng J, framed one issue: whether a temporary injunction pending appeal should issue. Applying Order 42 Rule 6(6) of the Civil Procedure Rules and the principles in Patricia Njeri & 3 Others v National Museum of Kenya and KCB v Nicholas Ombija, the court found the appeal arguable and held that, the Appellant being the registered proprietor of the subject matter, the property should be preserved. The application was allowed in its entirety, with costs to abide the outcome of the appeal.

Key legal issues

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Whether a temporary injunction should issue pending appeal

Holding

The application was allowed: the appellant, registered proprietor since 2001, established an arguable appeal and a prima facie case, and the suit property required preservation so the appeal would not be rendered nugatory.

Reasoning

The court applied Order 42 Rule 6(6) CPR and the Patricia Njeri and KCB v Nicholas Ombija principles, layered on the Giella v Cassman Brown criteria. It found the appellant has been registered proprietor since 2nd February 2001, that a cursory glance at the memorandum of appeal disclosed an arguable appeal, and that preservation of the suit property was necessary to avoid rendering the appeal nugatory.

p. 2

Legal principles established

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  • The High Court (or ELC on appeal) may grant a temporary injunction pending appeal where the procedure for instituting the appeal from a subordinate court has been complied with.
  • An arguable appeal need not necessarily succeed; it is one which ought to be argued fully before the Court.
  • Where the applicant has been the registered proprietor of the subject matter of the appeal, the subject matter should be preserved so the appeal is not rendered nugatory.

Court orders

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  1. 1.The Notice of Motion application dated 11th May 2021 is allowed in its entirety; an injunction pending appeal restraining the Respondent from entering, trespassing upon, selling, offering for sale, alienating, dealing with or in any manner interfering with land parcel MACHAKOS/KONZA NORTH BLOCK 1/440 pending hearing and determination of the Appeal
  2. 2.Costs to abide the outcome of the Appeal

Authorities

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Legislation

  • Environment and Land Court ActSection 13(7)
  • Civil Procedure ActSections 1A, 1B, 3, 3A, 78(2)
  • Civil Procedure RulesOrder 40 Rule 1; Order 42 Rule 6(6)
  • Law of Succession Act Cap. 160Section 93(1)

Cases cited (3)

  • Giella v Cassman Brown Co. Limited
    (1973) EA 358
  • Patricia Njeri & 3 Others v National Museum of Kenya
    [2004] eKLR
  • Kenya Commercial Bank Limited Vs. Nicholas Ombija
    [2009] eKLR
On appeal from
Chief Magistrate's Court
Suit filed 23rd July 2002 (number not stated)
Jurisdiction invoked
Section 13(7) of the Environment and Land Court Act; Sections 1A, 1B, 3, 3A and 78(2) of the Civil Procedure Act; Order 40 Rule 1 and Order 42 Rule 6(6) of the Civil Procedure Rules

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, "Uthasyo Mutheke v James Mwanthi Muthembwa [2022] KEELC 901 (KLR)", Case Analysis (2022). Not stated in the excerpt (Machakos ELC Appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/901/eng@2022-03-09

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