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ELCPartially AllowedNot stated in the judgment· [2023] KEELC 946 (KLR)

Ole Nampaso v Gilisho & 8 others (Environment and Land Appeal E007 of 2022) [2023] KEELC 946 (KLR)

High Court of Kenya (exercising appellate jurisdiction; court name not stated in the judgment)
21 February 2023
MCMbogo C.G.
1,918 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The applicant, holder of a limited letter of administration ad litem granted on September 17, 2021 in respect of the estate of Charles Kapolonto Nampaso, moved the court by notice of motion dated July 5, 2022 under Order 51 Rule 1 and Order 42 Rule 6(6) of the Civil Procedure Rules seeking a temporary injunction restraining the respondents from wasting, damaging, alienating, selling, subdividing or disposing of various parcels of land in Cis Mara/Lemek pending the disposal of his appeal against a trial court ruling of May 31, 2022 which had declined a temporary injunction. The 5th respondent, replying for the 1st, 2nd and 3rd respondents, opposed the application as an abuse of process, contending that no memorandum of appeal was annexed, that the applicant was not an administrator of the estate, and that the land was registered by the deceased on behalf of the Enkeju Emutukaa Community. The court identified a single issue: whether the applicant was entitled to a temporary injunction. It applied the settled principles for injunctions pending appeal, including the requirement of compliance with the appeal-instituting procedure under Order 42 Rule 6(6), and found the application defective: a memorandum of appeal had been filed but there was no record of appeal, typed proceedings or trial court application, making it impossible for the court to reach a conclusion. Balancing the overriding objectives of sections 1A and 1B of the Civil Procedure Act, the court declined the injunction but ordered that status quo be maintained pending the hearing and determination of the appeal.

Key legal issues

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01

Whether the applicant was entitled to a temporary injunction pending appeal

Holding

The application failed because the applicant had not complied with the procedure for instituting an appeal; however, in the interests of justice the court issued orders of status quo pending the appeal.

Reasoning

Order 42 Rule 6(6) empowers the court to grant a temporary injunction on appeal only where the procedure for instituting the appeal has been complied with. Although a memorandum of appeal was filed, there was no record of appeal, typed proceedings or the trial court application, making it impossible for the court to reach a conclusion. Guided by sections 1A and 1B of the Civil Procedure Act, the court nonetheless preserved the position with status quo orders.

p. 4

Legal principles established

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  • An application for temporary injunction under Order 42 Rule 6(6) may only be considered where the procedure for instituting an appeal from the subordinate court has been complied with.

Court orders

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  1. 1.Orders of status quo to be maintained pending the hearing and determination of the appeal

Authorities

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Legislation

  • Civil Procedure RulesOrder 51 Rule 1
  • Civil Procedure RulesOrder 42 Rule 6(6)
  • Civil Procedure ActSections 1A, 1B, 3A, 63, 75(1)(h), 78(2) and 79(b)

Cases cited (5)

  • Naftali Ruthi Kinyua v Patrick Thuita Gachure & another
    [2015] eKLR
  • Mawji v US International University & another
    [1976] KLR 185
  • Patricia Njeri & 3 others v National Museum of Kenya
    [2004] eKLR
  • Giella v Cassman Brown
    [1973] EA 358
  • Mrao Limited v First American Bank of Kenya & 2 others
    [2003] eKLR
On appeal from
Trial court (magistrate's court)
Not stated (ruling delivered May 31, 2022; associated with CMCC Succession Cause No. 105 of 2021)
Jurisdiction invoked
Order 42 Rule 6(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, "Ole Nampaso v Gilisho & 8 others (Environment and Land Appeal E007 of 2022) [2023] KEELC 946 (KLR)", Case Analysis (2023). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/946/eng@2023-02-21

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