Faraj Maharus v J.b. Martin Glass Industries Kenya Suit Case Manufacturers Ltd
The bottom line
#Kenya's Court of Appeal stopped an eviction, ruling that a family facing homelessness has a right to be heard even against a registered title.
What this practically means
#Executive summary
#Key legal issues
#Arguability of the intended appeal
The court found the appeal arguable because a Letter of Allotment dated 21st June 1995 offered the same property to the applicant, who paid the consideration in full, contradicting the respondents' claim of an unimpeachable title.
The High Court had struck out the suit relying on section 23(1) of the Registration of Titles Act and the case of Michael Kimotho v Nicholas Mugo, treating the first respondent's title as unimpeachable. The Court of Appeal, however, noted the Letter of Allotment to the applicant and full payment, concluding the applicant's case was not so hopeless that it should not go to trial, and that the intended appeal was arguable.
Irreparable harm / balance of convenience
Eviction of the applicant and his family, resident on the land since 1926, would cause great hardship not compensable in damages, while the respondents would suffer no prejudice from the injunction.
The court weighed the prejudice to each side. The respondents would not be prejudiced by the injunction, whereas refusal would leave the applicant and his family evicted and homeless without being heard. This satisfied the second limb of the rule 5(2)(b) test and justified the injunction pending appeal.
Legal principles established
#- An applicant under rule 5(2)(b) must demonstrate an arguable appeal and that irreparable harm will result if the order sought is not granted; where the applicant and family face eviction and homelessness, such hardship justifies an injunction pending appeal even against a party asserting an allocated title.
Court orders
#- 1.Order of injunction restraining the respondents, their servants and agents, from evicting the applicant from the suit property or interfering with his possession and enjoyment pending the hearing and determination of the intended appeal or further order
- 2.Costs of the application to be in the appeal
- On appeal from
- High Court of Kenya at Mombasa
- H.C.C.C. No. 447 of 1995
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Faraj Maharus v J.b. Martin Glass Industries Kenya Suit Case Manufacturers Ltd", Case Analysis (1998). Civil Application No. NAI. 153 of 1998. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1998/152/eng@1998-07-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.