Sugut v Yatich & another; Jepkorir (Interested Party)
The bottom line
#A Kenyan landowner lost her bid to block interference with disputed land because she argued her appeal's merits instead of proving she'd suffer irreparable harm.
What this practically means
#Executive summary
#Key legal issues
#Threshold for temporary injunction pending appeal
The applicant failed to meet the Giella v Cassman Brown principles as adapted by Patricia Njeri for injunctions pending appeal; the application was dismissed.
The court applied Order 42 Rule 6(6) and the Patricia Njeri principles incorporating Giella. The applicant argued the merits of her appeal rather than the injunction criteria, did not address irreparable injury, did not show the appeal would be rendered nugatory, and the balance of convenience did not favour her since possession of the suit property was unclear.
Availability of status quo order
A status quo order cannot issue where the court cannot ascertain the existing state of affairs or who is in possession.
Relying on Odunga J in Republic v National Environment Tribunal, Ex-parte Palm Homes, the court held that a status quo order preserves the circumstances existing when the order is made. Since it was unclear who between the appellant and respondents was in current possession of the suit property, no status quo order could issue.
Costs of the application
Costs were not awarded to any party immediately; they were made to abide the outcome of the appeal.
Although the general rule under section 27 of the Civil Procedure Act is that costs follow the event and the successful party ordinarily gets costs, the court in its discretion directed that costs of the dismissed application await the outcome of the appeal.
Legal principles established
#- The power to issue temporary injunctions pending appeal is discretionary and should not be exercised where the appeal is frivolous
- An applicant for injunction pending appeal must demonstrate irreparable injury not compensable by damages, balance of convenience, and that refusal would render the appeal nugatory
- Costs follow the event under section 27 of the Civil Procedure Act unless the court directs otherwise for good reason
Court orders
#- 1.The notice of motion application dated February 22, 2022 is dismissed.
- 2.The costs of the application shall abide the outcome of the appeal.
- On appeal from
- Chief Magistrate's Court at Molo
- Molo CMCC ELC 18 of 2020
- Jurisdiction invoked
- Order 42 Rule 6(6) of the Civil Procedure Rules - appellate jurisdiction to grant temporary injunction pending appeal
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Sugut v Yatich & another; Jepkorir (Interested Party)", Case Analysis (2022). Civil Appeal E2 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/13313/eng@2022-10-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.