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Supreme CourtPartially AllowedPetition (Application) E014 of 2023

Ashmi Investment Limited v Riakina Limited & another

Supreme Court of Kenya
4 August 2023
2,563 words in judgment
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AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

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Supreme Court allows appeal only on constitutional issues, stops eviction pending hearing.

What this practically means

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The Supreme Court ruled that Ashmi Investment can appeal only two specific questions: whether it was a genuine owner of the land under the Constitution, and whether the Court of Appeal wrongly applied the legal rule that prevents selling property during a dispute. The court also ordered that Ashmi cannot be evicted from the land until the full appeal is heard. This means the land dispute is paused while the higher court decides the important legal issues.

Executive summary

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This ruling by the Supreme Court of Kenya (5-judge bench, unanimous) addressed a preliminary objection and an application for conservatory orders in an appeal arising from a land dispute. The applicant, Ashmi Investment Limited, sought to appeal the Court of Appeal's ruling and judgment which had upheld the High Court's decision cancelling the applicant's titles to two parcels of land (LR Nos 29957 and 29955). The 1st respondent, Riakina Limited, raised a preliminary objection challenging the Supreme Court's jurisdiction on two grounds: that the notice of appeal was filed out of time, and that the appeal did not meet the threshold under Article 163(4)(a) of the Constitution. The Supreme Court rejected the first objection, holding that the notice of appeal was filed within the 14-day window because April 21, 2023 was a public holiday excluded from the computation of time under section 57(b) of the Interpretation and General Provisions Act. On the second objection, the court partially upheld it, finding that the appeal involved issues of constitutional interpretation and application under Article 40 (right to property) and the doctrine of lis pendens, which fall within its jurisdiction. However, the court declined to entertain factual contestations regarding fraud and evidence, which were fully ventilated in the lower courts. The court then granted the applicant's request for conservatory orders, staying execution of the Court of Appeal's ruling and judgment, and issuing a temporary injunction restraining the 1st respondent from interfering with the suit property pending the hearing and determination of the appeal. The court applied the three-part test from Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others, finding that the appeal was arguable, would be rendered nugatory without intervention, and involved public interest in the constitutional right to property and proper application of the doctrine of lis pendens. Costs were ordered to abide the outcome of the appeal.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the notice of appeal was filed out of time contrary to rule 36(1) of the Supreme Court Rules, 2020.
  2. 2.Whether the appeal meets the threshold of Article 163(4)(a) of the Constitution for the Supreme Court to assume jurisdiction.
  3. 3.Whether the applicant is entitled to conservatory orders staying execution of the Court of Appeal ruling and judgment pending the hearing and determination of the appeal.

Key legal issues

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01

Whether the notice of appeal was filed out of time contrary to rule 36(1) of the Supreme Court Rules, 2020.

Holding

The notice of appeal was filed within the 14-day window because April 21, 2023 was a public holiday and is excluded from the computation of time under section 57(b) of the Interpretation and General Provisions Act.

Reasoning

The ruling subject to appeal was delivered on April 14, 2023. The applicant lodged the notice of appeal via the Court of Appeal's online virtual platform on April 28, 2023. Since April 21, 2023 was a gazetted public holiday, it is excluded from the computation, making the 14-day period expire on April 29, 2023. The court also noted that the transition between electronic filing at the Court of Appeal and filing at the Supreme Court should not prejudice the applicant, citing Dina Management Limited v County Government of Mombasa & 5 others.

02

Whether the appeal meets the threshold of Article 163(4)(a) of the Constitution for the Supreme Court to assume jurisdiction.

Holding

The appeal partially meets the threshold; the Supreme Court has jurisdiction over issues involving interpretation and application of Article 40 of the Constitution and the doctrine of lis pendens, but not over factual contestations regarding fraud and evidence.

Reasoning

The court distinguished between issues that involve constitutional interpretation (ownership of land as a bona fide allottee under Article 40, and application of the doctrine of lis pendens) and pure factual contestations (inference of fraud and attendant evidence). The former fall within the Supreme Court's jurisdiction under Article 163(4)(a), while the latter do not. The court emphasized that the Supreme Court is not another layer of appeal for factual disputes.

03

Whether the applicant is entitled to conservatory orders staying execution of the Court of Appeal ruling and judgment pending the hearing and determination of the appeal.

Holding

The applicant is entitled to conservatory orders as it satisfied the three tests from Gatirau Peter Munya: arguability, nugatory effect, and public interest.

Reasoning

The court found that the appeal raised arguable constitutional issues regarding the right to property under Article 40 and the doctrine of lis pendens. The appeal would be rendered nugatory if the subject matter was not preserved, as the 1st respondent had already invaded the suit properties and erected a perimeter wall. Public interest favored granting the orders because the case involved the constitutional right to own property, double allocations of titles by public bodies, and the misapplication of the doctrine of lis pendens.

Legal principles established

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  • The Supreme Court can only hear appeals that involve interpreting or applying the Constitution, not factual disputes.
  • When counting the 14-day deadline to appeal, public holidays are excluded under Kenyan law.
  • To get a temporary order stopping action (conservatory order), you must show the appeal is arguable, would be useless without the order, and public interest supports it.
  • A person claiming to be a bona fide landowner under Article 40 can raise that as a constitutional issue for the Supreme Court.
  • The doctrine of lis pendens (no sale during litigation) is a legal question that can go to the Supreme Court if misapplied.
  • Double allocation of land titles by public bodies raises constitutional property rights issues.

Court orders

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  1. 1.The preliminary objection partly succeeds to the extent that the applicant will restrict its appeal to the following issues: (i) Whether the applicant was a bona fide owner of the suit properties within the provisions of article 40 of the Constitution; (ii) Whether the Court of Appeal misapplied the doctrine of lis pendens and thereby denying the applicant a right to property.
  2. 2.Notice of motion dated May 4, 2023 and filed on May 19, 2023 be and is hereby allowed.
  3. 3.Conservatory orders be and are hereby issued staying the execution of the ruling dated April 14, 2023 in Civil Appeal No 384 of 2019, Ashmi Investment Limited v Riakina Limited and National Land Commission pending the hearing and determination of the appeal.
  4. 4.Conservatory orders staying the execution of the Judgment dated November 19, 2021 in Civil Appeal No 384 of 2019, Ashmi Investment Limited v Riakina Limited and National Land Commission, pending the hearing and determination of this appeal.
  5. 5.A temporary injunction be and is hereby issued restraining the 1st respondent, its members, its agents, servants, employees and/or representatives from entering, taking possession of and in any other manner interfering with the suit property pending the hearing and determination of this appeal.
  6. 6.The costs of the application to abide the outcome of the appeal.

The bench

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One judgment of the whole court — no separate or dissenting opinions.

Philomena Mbete Mwilu
P. M. MwiluDCJ
Currently serving
majority
majority
Smokin Charles Wanjala
S. C. WanjalaSCJ
Currently serving
majority
Isaac Lenaola
I. LenaolaSCJ
Currently serving
majority
William Ouko
W. OukoSCJ
Currently serving
majority
On appeal from
Court of Appeal of Kenya
Civil Appeal No 384 of 2019
Jurisdiction invoked
Article 163(4)(a) of the Constitution of Kenya, 2010

Relief refused

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Appeal on issues of fraud and evidence (beyond the narrow constitutional prism)

The Supreme Court's jurisdiction under Article 163(4)(a) does not permit adjudication of factual contestations unless they fit the narrow prism of constitutional interpretation and application.

Costs

The costs of the application to abide the outcome of the appeal.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Our circumscribed jurisdiction under article 163(4)(a) of the Constitution does not permit the court to adjudicate factual contestations unless they can fit the narrow prism of constitutional interpretation and application.
p. 7 Supreme Court jurisdiction under Article 163(4)(a)
Since April 21, 2023 was gazetted as a public holiday vide Gazette Notice No 5045 dated April 19, 2023, we find that the applicant filed the notice of appeal within the fourteen-day window, expiring on April 29, 2023.
p. 6 Computation of time for filing notice of appeal
As set out in Gatirau Peter Munya case, it is evident to us that the appeal satisfies the three tests of arguability, in view of the self-evident arguments raised in the appeal, the appeal would be rendered nugatory if the court does not intervene and public interest in the sense that it is important for the constitutional right to own property, the exercise of authority by public bodies resulting to double allocations of titles to land and the misapplication of the doctrine of lis pendens which is a legal argument that goes to jurisdiction.
p. 7 Test for granting conservatory orders
Conservatory orders be and are hereby issued staying the execution of the ruling dated April 14, 2023 in Civil Appeal No 384 of 2019, Ashmi Investment Limited v Riakina Limited and National Land Commission pending the hearing and determination of the appeal;
p. 8 Final orders - stay of execution
A temporary injunction be and is hereby issued restraining the 1st respondent, its members, its agents, servants, employees and/or representatives from entering, taking possession of and in any other manner interfering with the suit property pending the hearing and determination of this appeal.
p. 8 Final orders - temporary injunction

Key timeline

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2023-04-14
Court of Appeal delivers ruling in Civil Appeal No 384 of 2019 against Ashmi Investment.
2023-04-21
Public holiday (gazetted) – excluded from appeal deadline calculation.
2023-04-28
Ashmi Investment files notice of appeal via Court of Appeal's online platform.
2023-05-19
Supreme Court grants conservatory orders staying eviction and allows appeal on limited constitutional issues.

Practical implications

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For lawyers

Narrow Supreme Court jurisdiction confirmed

When appealing to the Supreme Court under Article 163(4)(a), ensure your grounds involve interpretation or application of the Constitution – not just factual errors. The court will strike out issues that are purely factual. Also, remember to exclude public holidays when computing the 14-day appeal period; use section 57(b) of the Interpretation and General Provisions Act.

For businesses

Property disputes and double allocation

If you own land that was also allocated to someone else by a public body, you can argue your constitutional right to property (Article 40) before the Supreme Court. However, you must clearly separate constitutional issues from factual claims about fraud. This ruling also shows that a conservatory order can stop the other party from taking possession while the appeal is pending.

For individuals

Protection from eviction during appeal

If you are a landowner facing eviction after a court ruling, you can ask the Supreme Court for a temporary order to stay eviction while your appeal is heard. The court will grant it if your appeal raises serious constitutional questions, the land could be lost or damaged, and the public interest supports keeping the status quo. This ruling protected Ashmi from being thrown out before the full hearing.

Frequently asked questions

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What is the deadline to appeal to the Supreme Court in Kenya?+

You have 14 days to file a notice of appeal from the date of the Court of Appeal ruling. Public holidays are not counted in those 14 days. If the deadline falls on a public holiday, you get an extra day.

Can the Supreme Court hear any land dispute in Kenya?+

No. The Supreme Court only hears appeals that involve the interpretation or application of the Constitution. Pure factual disputes, like who committed fraud, stay in the lower courts. Land issues must be framed as constitutional questions, such as the right to property under Article 40.

What is a conservatory order in Kenyan law?+

A conservatory order is a temporary court order that stops something from happening until the main case is decided. In the Supreme Court, you must show the appeal is arguable, that without the order the appeal would be meaningless (nugatory), and that the public interest requires the order.

What does lis pendens mean in Kenyan property law?+

Lis pendens is a Latin term meaning 'pending lawsuit'. It prevents a property from being sold or transferred while a court case about it is ongoing. If a court misapplies this rule, the Supreme Court can step in to correct the legal error.

Later judgments citing this (4)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Ashmi Investment Limited v Riakina Limited & another", Case Analysis (2023). Petition (Application) E014 of 2023. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2023/66/eng@2023-08-04

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