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ELCDismissedApplication dated October 21, 2022 (in Nyeri Civil Appeal No E044 of 2022 proceedings)· [2023] KEELC 374 (KLR)

Akwalu (Suing as guardian of Samwel Akwalu) v Maingi (Environment and Land Appeal 100 of 2019) [2023] KEELC 374 (KLR)

Environment and Land Court
25 January 2023
1,070 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

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A Kenyan land court refused to stop developments on disputed land, holding that once it finished deciding an appeal, only the Court of Appeal could grant further relief.

What this practically means

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Executive summary

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The applicant, Faith Kananu Akwalu, moved the court by application dated October 21, 2022 seeking an injunction pending the hearing of Nyeri Civil Appeal No E044 of 2022, or alternatively maintenance of status quo on parcel No 2249 Kianjai/Uringu Adjudication Section, alleging the respondent had embarked on large developments likely to permanently alter the land's status. She deponed she had occupied the land for 30 years, occupied 2 of the 6.18 acres, and offered security of Kshs 20,000/=. The respondent opposed, asserting he took vacant possession in 2019 after the lower court judgment, the application was a delaying tactic filed out of time and without explanation, substantial loss was not demonstrated, and the court was functus officio since the appeal lay before the Court of Appeal. Relying on Order 42 rule 6 of the Civil Procedure Rules and authorities including Patricia Njeri, Madhupaper International Ltd vs Kerr, KCB Ltd vs Nicholas Ombija and James Wangalwa, the court held that having determined the appeal to finality it could not assess the arguability of the pending appeal; substantial loss required tangible and credible evidence which was not provided; the status quo was undefined; and the eight-month delay was unexplained. The court found greater harm would befall the respondent and dismissed the application with costs on January 25, 2023.

Key legal issues

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01

Jurisdiction to grant injunction pending appeal after final determination of the appeal

Holding

The court lacked the capacity to grant the relief; it was no longer sitting as an appellate court and the issues belonged to the Court of Appeal

Reasoning

The court had already determined the appeal to finality, and the appeal before the Court of Appeal was against its own judgment. It could not pronounce on the arguability of the further appeal. The respondent had also contended that the court was functus officio, and the court effectively accepted that the issues were for the appellate forum.

p. 2
02

Whether substantial loss and unexplained delay defeated the application

Holding

Substantial loss was not substantiated by tangible evidence and the eight-month delay was unexplained; more harm would befall the respondent if the orders were granted

Reasoning

The applicant took possession analysis aside, the respondent had been on the land since 2019 pursuant to the lower court judgment, developments alleged were not particularized, and the status quo was undefined. The confirmed grant had never been challenged on appeal. The balance of convenience favoured the respondent.

p. 3

Legal principles established

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  • A court that has determined an appeal to finality cannot assess whether a further appeal to the Court of Appeal is frivolous, meritorious or arguable; those issues belong to the appellate court
  • Substantial loss must be proved by tangible and credible evidence

Court orders

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  1. 1.The application dated October 21, 2022 is dismissed with costs
On appeal from
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null
Jurisdiction invoked
Order 42 rule 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, "Akwalu (Suing as guardian of Samwel Akwalu) v Maingi (Environment and Land Appeal 100 of 2019) [2023] KEELC 374 (KLR)", Case Analysis (2023). Application dated October 21, 2022 (in Nyeri Civil Appeal No E044 of 2022 proceedings). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/374/eng@2023-01-25

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