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ELCAllowedKisumu CMC ELC No. E152 of 2023 (appeal thereof)· [2024] KEELC 6283 (KLR)

Attorney General & 2 others v Pandhal & 4 others (Environment and Land Appeal E012 of 2024) [2024] KEELC 6283 (KLR)

High Court of Kenya
25 September 2024
3,345 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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The 1st Respondent sued in Kisumu CMC ELC No. E152 of 2023 seeking a permanent injunction and eviction over Kisumu/Municipality Block 11/164, claiming beneficial ownership purchased through his deceased father. Together with the plaint he sought interlocutory orders including eviction of the tenant and a temporary injunction. The Appellants, representing the State Department of Housing and Urban Development, asserted that the property was Government property, not subjected to a boarding/alienation process, and leased to the 3rd Appellant, a civil servant, at Kshs. 16,000/- monthly rent. On 15th February 2024 Hon. E.A. Obina SPM ordered the tenant to vacate and hand over possession, directed the 2nd Appellant to file a status report, and restrained interference pending the suit. The Appellants appealed and moved this Court under section 76(h) of the Civil Procedure Act and Order 42 Rule 6 for an injunction pending appeal and a stay of execution. The 1st Respondent opposed, relying on succession proceedings (Succession Cause No. E273 of 2022) transferring the property to him, and did not file submissions on the stay. Applying Trust Bank v Investech, Kinyanjui v Ketter and Kenya Shell v Karuga, S. Okong'o J found the appeal arguable - particularly whether the lower court could grant final possession orders at an interlocutory stage and whether the 1st Respondent had capacity to sue as beneficial owner - and found the appeal would be rendered nugatory if the property were demolished or sold. Substantial loss and absence of undue delay were established, and no security issue was raised. The Court stayed execution of orders 1, 3 and 5 of the lower court ruling and issued an injunction preserving the suit property, each party bearing its own costs, expressly leaving the lower court free to determine the suit.

Key legal issues

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01

Injunction pending appeal

Holding

The appeal is arguable - it is arguable whether the lower court could grant final eviction/possession orders at an interlocutory stage and whether the 1st Respondent had capacity to sue as beneficial owner - and the appeal would be rendered nugatory if possession were taken and the property demolished or sold.

Reasoning

The court applied the Rule 5(2)(b) principles from Trust Bank v Investech and Kinyanjui v Ketter. A single bona fide arguable ground suffices. Demolition of the house or sale to a third party could not be reversed if the appeal succeeded, satisfying the nugatory test.

p. 5
02

Stay of execution pending appeal

Holding

The application was filed without undue delay, substantial loss was shown because the 3rd Appellant risked eviction, and the Appellants are capable of satisfying the decree should the appeal fail; the 2nd Appellant may still file its report on registration status.

Reasoning

Applying Order 42 Rule 6(2) and Kenya Shell v Karuga, the court found substantial loss evidenced by the eviction order against the 3rd Appellant, no undue delay (ruling 15 February 2024, application 15 March 2024), and no security objection raised by the 1st Respondent.

p. 6

Legal principles established

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  • To obtain an injunction pending appeal, the applicant must show the appeal is arguable and that unless granted, the appeal, if successful, will be rendered nugatory.
  • Substantial loss is the cornerstone of the jurisdiction to grant a stay of execution.

Court orders

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  1. 1.Stay of execution of orders 1, 3 and 5 of the ruling of Hon. E.A. Obina SPM of 15th February 2024 pending hearing of the appeal or final judgment in the lower court, whichever comes earlier
  2. 2.Injunction restraining the 1st Respondent from dismantling and wasting equipment on, or disposing of, alienating, transferring, charging, leasing or dealing with the suit property (KISU/HOU/HG/15 Milimani Estate, Kisumu also known as Kisumu Municipality/Block 11/164) pending the appeal or final judgment in the lower court
  3. 3.Liberty to the Appellants to seek stay of any final judgment/injunction in fresh appeal proceedings
  4. 4.Each party to bear its own costs of the application

Authorities

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Legislation

  • Civil Procedure Actsection 76(h)
  • Civil Procedure RulesOrder 42 Rule 6(1), (2) and (6)
  • Court of Appeal Rules 2022Rule 43
  • former Court of Appeal RulesRule 5(2)(b)

Cases cited (5)

  • Hezron Kamau Gichuru v. Kianjoya Enterprises Ltd & Another
    [2022] eKLR
  • Mburu v Kibara & 2 Others
    (Environment & Land Case 237 of 2021) [2022] KEELC 3226 (KLR) (28th July 2022) (Ruling)
  • Trust Bank Limited and Another v Investech Bank Limited and 3 Others
    [2000] eKLR
  • Stanley Kang'ethe Kinyanjui v Tony Ketter & 5 others
    [2013] eKLR
  • Kenya Shell Limited v Karuga
    [1982 - 1988] I KAR 1018
On appeal from
Chief Magistrate's Court, Kisumu (Environment and Land)
Kisumu CMC ELC No. E152 of 2023, Ishwinder Harjeet Pandhal v. Page Investment Co. Ltd. & 6 Others
Jurisdiction invoked
Section 76(h) of the Civil Procedure Act and Order 42 Rule 6 of the Civil Procedure Rules (appellate jurisdiction over subordinate court)

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, "Attorney General & 2 others v Pandhal & 4 others (Environment and Land Appeal E012 of 2024) [2024] KEELC 6283 (KLR)", Case Analysis (2024). Kisumu CMC ELC No. E152 of 2023 (appeal thereof). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6283/eng@2024-09-25

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