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ELCAllowedEnvironment and Land Appeal E041 of 2023· [2023] KEELC 20616 (KLR)

Gacheri v Gatobu

Environment and Land Court
11 October 2023
CNCK Nzili
1,020 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan land buyer who lost in the lower court can still freeze the property pending appeal, if she deposits security and shows one plausible appeal ground.

What this practically means

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Executive summary

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This is a ruling by CK Nzili, J of the Environment and Land Court at Meru on an application dated 21 June 2023 in an appeal from a lower court. The appellant, Joyce Gacheri, sought a temporary injunction and an inhibition restraining the respondent, Stanley Gatobu, from interfering with LR No. Nyaki/Kithoka/Mwanika/73 pending the hearing and determination of the appeal. She averred that she bought 0.50 acres of the suit land in 2010, took possession and developed it, that her suit in the lower court was dismissed, and that the respondent threatened to dispose of the land to a third party. The respondent opposed, contending that the lower court ordered reimbursement of the Kshs.330,000 consideration plus Kshs.200,000 compensation for developments, that the appellant had effectively won in the lower court, and that the appeal was frivolous. The court invoked Order 42 rule 6(6) of the Civil Procedure Rules and sections 68 and 73 of the Land Registration Act, and reviewed authorities on the arguability, nugatory, hardship-balancing and irreparable-loss tests for injunctions and inhibitions pending appeal. Finding that the memorandum of appeal raised serious points - including whether the trial court disregarded a binding sale agreement and miscomputed interest - the court held the appeal was not frivolous. It allowed the injunction and inhibition for one year, conditioned on the applicant depositing Kshs.100,000 as security for costs within 14 days, and directed that the lower court file be availed for mention before the Deputy Registrar. No costs order was recorded.

Key legal issues

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01

Whether the appeal is arguable

Holding

The memorandum of appeal raises serious points; the appeal is not frivolous.

Reasoning

The court noted that at issue in the appeal is whether the trial court disregarded a binding sale agreement and considered interest to run from the date of the sale agreement. The respondent had not shown that the refund ordered by the lower court had been made or vacant possession obtained, supporting the arguability of the appeal.

p. 2
02

Whether injunction and inhibition pending appeal should issue

Holding

Both granted for one year, conditioned on a deposit of Kshs.100,000 as security for costs.

Reasoning

Applying Order 42 rule 6(6) and sections 68 and 73 of the Land Registration Act, and the arguability/nugatory and hardship-balancing tests from the cited authorities, the court found preservation of the suit land necessary to protect the appeal, subject to security for costs.

p. 2

Legal principles established

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  • An appellate court may grant a temporary injunction pending appeal where the procedure for instituting the appeal has been complied with.
  • The threshold for an arguable appeal is at least one sufficient or plausible ground likely to succeed, not merely exhibiting a memorandum of appeal.
  • The purpose of an inhibition pending appeal is to preserve the status quo and prevent a successful appeal from being rendered nugatory.

Court orders

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  1. 1.Temporary injunction and inhibition pending appeal granted, to last for one year
  2. 2.Applicant to deposit Kshs.100,000 as security for costs within 14 days from the date of the ruling
  3. 3.Lower court file to be availed for mention before the Deputy Registrar

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 rule 6(6)
  • Land Registration Actsections 68 and 73

Cases cited (10)

  • Kitho Civil & Engineering Co. Ltd vs National Bank of Kenya & another
    Civil Appeal (appl) E706 of 2021 (2023) KECA 387 (KLR) (31st March 2023) (Ruling)

    Parameters for granting injunction or inhibition pending appeal

  • Alfred Mincha Ndubi vs. Standard Ltd
    (2020) eKLR

    Cited with approval on injunction pending appeal parameters

  • Multi Media University & another vs. Gitile Naituli
    (2014) eKLR

    Cited with approval on injunction pending appeal parameters

  • Stanely Kangethe Kinyanjui vs. Tony Keter & others
    (2013) eKLR

    Appeal should be arguable and not rendered nugatory without the order

  • African Safari Club Ltd vs. Safe Rentals Ltd
    (2010) eKLR

    Where hardship is equal, court balances difficulties and treats parties equally under the overriding objective

  • Esso Kenya Ltd vs. Mark Makwata Okiya
    (1992) eKLR

    Where damages can compensate, equitable relief of injunction is not available

  • Munge vs. Munge
    (2023) KECA 75 (KLR) (3rd February 2023) (Ruling)

    Low threshold of an arguable appeal - at least one plausible ground likely to succeed

  • Grace Kinoru Mark vs. Mark Muriungi Mark & 2 others
    (2022) eKLR

    Authority on inhibition pending appeal

  • Charterhouse Bank Ltd vs. Central Bank Kenya Limited & others
    (2007) eKLR

    Purpose of inhibition pending appeal - preserve status quo and prevent appeal being nugatory

  • Bilha Mideva Buluku vs. Everlyne Kanyere
    (2016) eKLR

    Court must establish if appeal raises serious questions without delving into merits

On appeal from
Lower court (subordinate court, Meru)
Jurisdiction invoked
Order 42 rule 6(6) of the Civil Procedure Rules; sections 68 and 73 of the Land Registration Act

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, "Gacheri v Gatobu", Case Analysis (2023). Environment and Land Appeal E041 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/20616/eng@2023-10-11

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