Barina Squatters Self Help Group v Barina Squatters Self Help Group Land Project & another
The bottom line
#Kenya's Environment and Land Court stopped any dealings with disputed Nakuru land parcels until an appeal over 803 acres of squatter-allocated land is decided.
What this practically means
#Executive summary
#Key legal issues
#Whether the application for temporary injunction pending appeal is merited
The application was merited; the appeal is arguable and executing an order over undescribed land against a non-party would cause great hardship and loss.
The court found the Memorandum of Appeal arguable, noting the claim that neither the Tribunal award nor the case specified the 803 acres. It noted subordinate court orders directing police assistance during execution of 803 acres against an entity allegedly not party to the suit, and held that failure to grant an injunction would inflict great hardship and render the appeal nugatory, warranting preservation of the suit property.
Applicable principles for injunction pending appeal
The Patricia Njeri principles apply: injunction against frivolous appeals, hardship balance, nugatory-appeal test, guided by Giella v Cassman Brown.
The court adopted the principles in Patricia Njeri & 3 Others v National Museum of Kenya governing injunctions pending appeal, and the Giella v Cassman Brown conditions for interlocutory injunctions, together with the Mrao definition of a prima facie case and Rockland Kenya on the purpose of interlocutory relief.
Legal principles established
#- An order of temporary injunction pending appeal may issue where the appeal is arguable, refusal would inflict greater hardship than it would avoid, and refusal would render the appeal nugatory.
- A court exercising appellate jurisdiction under Order 42 Rule 6(6) may preserve the suit property pending determination of the appeal.
Court orders
#- 1.Pending the hearing and determination of the appeal, a temporary injunction issued restraining the Respondents and their officials, agents, servants or employees from entering, surveying, leasing, fencing or in any manner dealing with land parcels LR No 11384, 5700 and 10332
- 2.Costs of the application to abide the outcome of the appeal
- On appeal from
- Chief Magistrate's Court at Nakuru
- Nakuru CMCC Miscellaneous Application No. 138 of 2020
- Jurisdiction invoked
- Order 42 Rule 6(6) of the Civil Procedure Rules - appellate jurisdiction to grant temporary injunction pending appeal from a subordinate court
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Barina Squatters Self Help Group v Barina Squatters Self Help Group Land Project & another", Case Analysis (2023). Environment and Land Appeal E007 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/21887/eng@2023-11-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.