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ELCDismissedNot stated in the extract· [2024] KEELC 4334 (KLR)

Kiugu & another v Mwiti & another (Sued as the legal representatives of the Estate of the Late M'Ikiome M'Twerandu - Deceased) (Environment and Land Appeal E054 of 2023) [2024] KEELC 4334 (KLR)

Environment and Land Court
22 May 2024
683 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~3 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court in Meru dismissed a landowner's bid to block opponents from accessing disputed land pending appeal, because he offered no solid evidence.

What this practically means

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Executive summary

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By a notice of motion supported by an affidavit of Stanley Kiugu sworn on 5 March 2024, the applicants sought an order of inhibition and a temporary injunction restraining the respondents from entering, remaining on, occupying or interfering with 2 acres out of the suit land pending hearing and determination of an appeal against a lower court decision that struck out their suit, which was founded on trust, on account of res judicata. The applicants asserted that a warning of forceful eviction had been issued, that the property needed preservation pending the appeal, and that no prejudice would be suffered by the respondents given their alleged extensive developments on the land for forty years. Though served, the respondents filed no response. The court, applying Madhupaper v Kerr, S.K Macharia v Simon Njoroge Muchiri, Patricia Njeri v National Museum of Kenya, Giella v Cassman Brown and Ecobank v First Choice Mega Stores, held that an injunction pending appeal requires exceptional circumstances, an arguable appeal, and a demonstration that refusal would render the appeal nugatory, and that an inhibition, being prohibitory in nature, must satisfy the Giella principles. The applicants attached no search of the title and gave no particulars of the alleged developments; the trial court had made no positive order in the respondents' favour; and hardship was not demonstrated. The application was dismissed with costs on 22 May 2024.

Key legal issues

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01

Whether an injunction pending appeal was warranted

Holding

The application lacked merit; the applicants failed to demonstrate exceptional circumstances, an arguable appeal, or that the appeal would be rendered nugatory.

Reasoning

Relying on Madhupaper v Kerr, the court required exceptional circumstances. The trial court had merely struck out the suit on res judicata with no positive order in the respondents' favour, weakening any claim of nugatory effect. The applicants' assertions of extensive developments over forty years were unsupported by a search or evidence of the nature, status and value of those developments, so the hardship threshold was not met.

p. 2
02

Whether the requirements for an inhibition were met

Holding

No; the inhibition being prohibitory in nature, the Giella principles applied and were not satisfied.

Reasoning

The court treated an inhibition as a prohibitory injunction, requiring proof of a prima facie case or otherwise a triable issue. The applicants annexed the memorandum of appeal, a letter and a ruling, but did not annex a land search, and gave no particulars of the alleged developments, leaving the claim as guesswork. The threshold for interim protection was therefore not attained.

p. 2

Legal principles established

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  • An injunction pending appeal requires demonstration of exceptional circumstances, including a good reason for preservation of the property and an arguable appeal
  • An inhibition is in the nature of a prohibitory injunction and the applicant must meet the Giella v Cassman Brown principles
  • An appellate court will not disturb a trial decision unless the applicant demonstrates arguable issues and how the appeal would be rendered nugatory

Court orders

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  1. 1.The notice of motion seeking an order of inhibition and temporary injunction pending appeal is dismissed
  2. 2.Costs of the application awarded to the respondents

Authorities

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Cases cited (5)

  • Madhupaper vs Kerr
    (1985) eKLR
  • S.K Macharia & another vs. Simon Njoroge Muchiri & others
    Court of Appeal Civil Application No. NRB 218 of 2006
  • Patricia Njeri vs National Museum of Kenya
    (2004) eKLR
  • Giella vs Cassman Brown Co. Limited
    (1973) E.A 358
  • Ecobank (K) Ltd vs First Choice Mega Stores Ltd
    Kisii ELC Misc Civil Application No. 20 of 2017
On appeal from
Lower court (magistrates' court, Meru)
Not stated
Jurisdiction invoked
Appellate jurisdiction of the Environment and Land Court over an appeal from the lower court, with discretion to grant an injunction pending appeal

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, "Kiugu & another v Mwiti & another (Sued as the legal representatives of the Estate of the Late M'Ikiome M'Twerandu - Deceased) (Environment and Land Appeal E054 of 2023) [2024] KEELC 4334 (KLR)", Case Analysis (2024). Not stated in the extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4334/eng@2024-05-22

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