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)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether an injunction pending appeal was warranted
The application lacked merit; the applicants failed to demonstrate exceptional circumstances, an arguable appeal, or that the appeal would be rendered nugatory.
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.
Whether the requirements for an inhibition were met
No; the inhibition being prohibitory in nature, the Giella principles applied and were not satisfied.
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.
Legal principles established
#- 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
#- 1.The notice of motion seeking an order of inhibition and temporary injunction pending appeal is dismissed
- 2.Costs of the application awarded to the respondents
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.