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ELCDismissedCivil Appeal E2 of 2022· [2022] KEELC 13313 (KLR)

Sugut v Yatich & another; Jepkorir (Interested Party)

Environment and Land Court
6 October 2022
3,129 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~13 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This ruling of the Environment and Land Court at Nakuru (L.A. Omollo J) determined a notice of motion dated February 22, 2022 in which the appellant, Susan Kimeli Sugut, sought a temporary injunction pending the hearing of her appeal against the judgment of Hon. R. Yator (PM) delivered on February 3, 2022 in Molo CMCC ELC No 18 of 2020, in which her suit was dismissed with costs and she was declared a trespasser. She alternatively sought an order of status quo preserving land parcel Nakuru/Ngongogeri/258. The application was brought under Order 42 Rule 6(6) and Order 51 Rule 1 of the Civil Procedure Rules. The respondents opposed, contending that the appellant held no title to the suit property, that parcel 258 belongs to Jackson Tanui, that they occupied parcels 663 and 686 with the authority of the interested party (holder of a limited grant ad litem), and that the appellant had fenced and cultivated the wrong parcels. The court framed two issues: whether the appellant met the threshold for a temporary injunction pending appeal, and costs. Applying Order 42 Rule 6(6) and the Patricia Njeri principles incorporating Giella v Cassman Brown, the court found the applicant had argued the merits of her appeal rather than the injunction criteria, had not demonstrated irreparable injury (the lower court made no eviction order), had not shown the appeal would be rendered nugatory, and had not established the balance of convenience given uncertainty over possession. A status quo order was also refused for the same reason. The application was dismissed with costs abiding the outcome of the appeal.

Key legal issues

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01

Threshold for temporary injunction pending appeal

Holding

The applicant failed to meet the Giella v Cassman Brown principles as adapted by Patricia Njeri for injunctions pending appeal; the application was dismissed.

Reasoning

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.

p. 6
02

Availability of status quo order

Holding

A status quo order cannot issue where the court cannot ascertain the existing state of affairs or who is in possession.

Reasoning

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.

p. 7
03

Costs of the application

Holding

Costs were not awarded to any party immediately; they were made to abide the outcome of the appeal.

Reasoning

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.

p. 7

Legal principles established

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  • 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

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  1. 1.The notice of motion application dated February 22, 2022 is dismissed.
  2. 2.The costs of the application shall abide the outcome of the appeal.

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 6(6)
  • Civil Procedure RulesOrder 51 Rule 1
  • Civil Procedure ActSections 1A, 1B, 3 and 3A (cited as 3Z)
  • Civil Procedure Act (cap 21)Section 27

Cases cited (8)

  • Giella v Cassman Brown & Co Ltd
    [1973] EA 358

    Conditions for grant of interlocutory injunction: prima facie case, irreparable injury, balance of convenience

  • Patricia Njeri & 3 Others v National Museum of Kenya
    [2004] eKLR

    Principles for temporary injunction pending appeal

  • Pius Kipchirchir Kogo v Frank Kimeli Tenai
    (2018) eKLR

    Meaning of balance of convenience

  • Paul Gitonga Wanjau v Gathuthis Tea Factor Company Ltd & 2 others
    (2016) eKLR

    Balance of convenience and maintaining status quo

  • Republic v National Environment Tribunal, Ex-parte Palm Homes Limited & Another
    [2013] eKLR

    Meaning of an order to maintain status quo

  • Hussein Janmohamed & Sons v Twentsche Overseas Trading Co Ltd
    [1967] EA 287

    Costs follow the event; successful party ordinarily awarded costs

  • Esther Muthoni Mwangi v Samuel Maina Njaria
    [2021] eKLR
  • Joyce Mutindi Ndili v Mulu Ndili
    [2022] eKLR
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

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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, "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.