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ELCDismissedNot stated in the judgment· [2024] KEELC 1538 (KLR)

Brenchley (Appealing as the Legal Representative of the Estate of David Lee Benchley – Deceased) v Imathiu (Environment and Land Appeal E076 of 2022) [2024] KEELC 1538 (KLR)

Environment and Land Court
20 March 2024
CNC K Nzili
907 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~4 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court in Meru refused to protect disputed land because the applicant's appeal had already been struck out and she proved no real risk of loss.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Meru (C K Nzili, J) determines a notice of motion in which the applicant, the legal representative of her late husband's estate who resides in the United States, sought an injunction restraining the respondent from selling, charging, leasing or otherwise disposing of LR Nos. Nyaki/Munithu/1480 and 1481 pending appeal. The applicant averred that the deceased had beneficially purchased the suit properties through the respondent, that judgment in the lower court established the respondent had no good title, and that the respondent was sourcing buyers despite the pending appeal. The respondent, who filed written submissions but no replying affidavit, argued the application fell short of the threshold in Orawo v Mistri. The court restated the Order 42 Rule 6 tests - an arguable appeal rendered nugatory if refused, greater hardship, and the Giella v Cassman Brown principles - citing Madhupaper, KCB v Ombija, Nguruman and Kogo. Critically, the court observed that the appeal had been admitted on 16.11.2023 with directions to file the record within 60 days; the applicant never complied, and the respondent's application to strike out the appeal was granted. There was therefore no pending appeal to preserve. The court further found the applicant's apprehension of disposal speculative and unconfirmed, and that she had not proved what she stood to lose or the balance of convenience. The application was dismissed with no order as to costs.

Key legal issues

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01

Whether an injunction pending appeal can issue where the appeal has been struck out

Holding

No - the application fails because the appeal was struck out for non-filing of the record, leaving nothing to stay or preserve

Reasoning

The appeal had been admitted for hearing with directions to file the record within 60 days. The applicant did not comply. The respondent sought striking out of the appeal and the court acceded. Without a pending appeal, there is no substratum for an Order 42 Rule 6 injunction pending appeal.

p. 2
02

Whether the applicant demonstrated sufficient injury and balance of convenience

Holding

No - the apprehension of disposal was unconfirmed and speculative, and the applicant failed to show what she stood to lose relative to the respondent

Reasoning

Relying on Nguruman and Kogo, the court held that fear must be confirmed by evidence; injury must be actual, substantial and demonstrable, and inconvenience must be proved, not inferred. The applicant showed no evidence of use of the land or of misuse or vandalism, and did not set out her loss.

p. 2

Legal principles established

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  • A party seeking a temporary injunction pending appeal must show an arguable appeal that would be rendered nugatory if refused, and must satisfy the Giella v Cassman Brown principles
  • An appeal is rendered nugatory if what needed to be stayed is irreversible or damages would be inadequate compensation
  • Speculative injury does not justify an injunction; the injury must be actual, substantial and demonstrable
  • A party must prove balance of convenience; the court cannot infer it

Court orders

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  1. 1.The application for an injunction pending appeal is dismissed
  2. 2.No order as to costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 6

Cases cited (8)

  • Orawo & another vs Mistri & others (1988)
    eKLR
  • Giella v Cassman Brown
    [1973] EA 358
  • Patricia Njeri & others v National Museums of Kenya
    [2004] eKLR
  • Madhupaper International Ltd v Kerr
    [1985] eKLR
  • Kenya Commercial Bank v Ombija
    [2009] eKLR
  • Stanley Kang'ethe Kinyanjui v Tony Keter & others
    [2013] eKLR
  • Nguruman Ltd v Jan Bonde Nielsen & 2 others
    [2014] eKLR
  • Pius Kipchirchir Kogo v Frank Kimeli Tenai
    [2018] eKLR
On appeal from
Lower court (magistrates' court)
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, "Brenchley (Appealing as the Legal Representative of the Estate of David Lee Benchley – Deceased) v Imathiu (Environment and Land Appeal E076 of 2022) [2024] KEELC 1538 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1538/eng@2024-03-20

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