Akwalu (Suing as guardian of Samwel Akwalu) v Maingi (Environment and Land Appeal 100 of 2019) [2023] KEELC 374 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Jurisdiction to grant injunction pending appeal after final determination of the appeal
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
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.
Whether substantial loss and unexplained delay defeated the application
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
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.
Legal principles established
#- 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
#- 1.The application dated October 21, 2022 is dismissed with costs
- On appeal from
- null
- null
- Jurisdiction invoked
- Order 42 rule 6 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.