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ELCDismissedNotice of Motion dated 29.11.2021 ( Appeal from Chuka C.M. ELC Case No. 52 of 2019)· [2022] KEELC 1216 (KLR)

Loyd Mugambi Maina & 19 others v Kirumi Kiamujari Water Project (Sued through its Registered Trustees/officials) [2022] KEELC 1216 (KLR)

Environment and Land Court
1 March 2022
CYC. K. Yano
2,823 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court at Chuka refused to stop a water pipeline being laid across disputed land, saying the landowners' concerns could be settled with money later.

What this practically means

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Executive summary

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This ruling by the Environment and Land Court at Chuka (C. K. Yano, J) determines a notice of motion dated 29th November 2021 by the appellants, who were the plaintiffs whose suit was dismissed with costs by the Chuka Chief Magistrate's Court (ELC Case No. 52 of 2019) on 11th November 2021. They sought a temporary injunction, under Order 42 Rule 6(6) of the Civil Procedure Rules and Section 63(e) of the Civil Procedure Act, restraining the respondent from excavating trenches to lay a water pipeline across parcels of land in the Mwimbi/Murugi area pending their appeal. The respondent opposed, arguing the application was defective as it did not seek a stay of a negative decree, that the appellants had not proved ownership of the suit parcels, and that any loss was compensable in damages. Both sides filed written submissions citing Giella v Cassman Brown, Patricia Njeri v National Museum of Kenya, Mrao Ltd v First American Bank and Kenya Shell v Kibiru. The court first confirmed jurisdiction, finding that the memorandum of appeal filed on 19th November 2021 complied with Section 79G, so the court could grant an injunction in its appellate jurisdiction. Applying the Giella and Patricia Njeri principles, the court held that the appellants had not shown the appeal was arguable or that it would be rendered nugatory: the land would remain after the appeal, the pipes could be removed, and the appellants' real concern was compensation, recoverable as damages. The motion was dismissed with costs to the respondent.

Key legal issues

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01

Whether the ELC on appeal can grant a temporary injunction under Order 42 Rule 6(6)

Holding

Yes - once the procedure for filing the appeal is complied with, the court has jurisdiction to grant a temporary injunction in the exercise of its appellate jurisdiction

Reasoning

The court noted that a memorandum of appeal filed within 30 days of the decision satisfies Section 79G and Order 42 Rule 6(6), vesting the appellate court with power to grant a temporary injunction on such terms as it thinks just. The memorandum of appeal was filed on 19th November 2021, eight days after the 11th November 2021 decision, so compliance was not in doubt and the court was seized of jurisdiction to determine the injunction application.

p. 4
02

Whether the appellants established a case for an injunction pending appeal

Holding

No - the appeal was not shown to be arguable, nor rendered nugatory without an injunction, and any loss was compensable in damages

Reasoning

The court applied the Patricia Njeri principles and Giella conditions, holding that where the subject of the suit is land which will still exist post-appeal and water pipes can be removed, the appeal is not rendered nugatory. The applicants' real concern was compensation, which is adequately addressed by an award of damages if the appeal succeeds. The application therefore lacked merit and was dismissed with costs.

p. 5

Legal principles established

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  • The High Court, in the exercise of its appellate jurisdiction, has discretionary power under Order 42 Rule 6(6) to grant a temporary injunction pending appeal provided the procedure for instituting the appeal from the subordinate court has been complied with
  • An applicant for an injunction pending appeal must satisfy the Giella v Cassman Brown principles and additionally show the appeal is arguable and would be rendered nugatory if the injunction is refused

Court orders

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  1. 1.The Notice of Motion dated 29th November 2021 is dismissed with costs to the Respondent

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 6(6)
  • Civil Procedure ActSection 63(e)
  • Civil Procedure ActSection 79G
  • Civil Procedure RulesOrder 40 Rule 1
  • Land Registration Act No. 3 of 2012Section 26

Cases cited (6)

  • Jason Kathurima Rukaria vs Kenya Power & Lightning Co. Ltd
    (2008) eKLR
  • Giella v Cassman Brown & Co. Ltd
    [1973] EA 358
  • Stephen Mutugi Mwenje vs Municipal Council of Kerugoya & Another
    (2018) eKLR
  • Patricia Njeri & 3 others v National Museum of Kenya
    (2004) eKLR
  • Mrao Limited –v- First American Bank of Kenya and 2 Others
    [2003] eKLR
  • Kenya Shell Limited vs Kibiru
    [1986] KLR 410
On appeal from
Chuka Chief Magistrate's Court (ELC)
ELC Case No. 52 of 2019
Jurisdiction invoked
Order 42 Rule 6(6) of the Civil Procedure Rules and Section 63(e) of the Civil Procedure Act; Section 79G of the Civil Procedure Act (appeal from subordinate court)

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, "Loyd Mugambi Maina & 19 others v Kirumi Kiamujari Water Project (Sued through its Registered Trustees/officials) [2022] KEELC 1216 (KLR)", Case Analysis (2022). Notice of Motion dated 29.11.2021 ( Appeal from Chuka C.M. ELC Case No. 52 of 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1216/eng@2022-03-01

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