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Court of AppealAllowedCivil Application No. NAI 181 of 2002

Law Society of Kenya,Lima Limited,Uasin Gishu Land Registrar v Commissioner of Lands,Lima Limited,Uasin Gishu Land Registrar [2003] KECA 113 (KLR)

Court of Appeal of Kenya
28 February 2003
RKR. O. KwachPhilip Kiptoo TunoiP. K. TunoiASA. B. Shah
596 words in judgment
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The bottom line

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Kenya's Court of Appeal froze the transfer of land beneath the Eldoret High Court, preserving the status quo until the Law Society's appeal is decided.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Nakuru (Kwach, Tunoi and Shah JJ.A) delivered on 28 February 2003 in an application by the Law Society of Kenya under rule 5(2)(b) of the Court of Appeal Rules, seeking maintenance of the status quo over plots Eldoret Municipality Block 4/53 and 4/55, the land on which the Eldoret High Court buildings stand, which had been allocated to Lima Limited. The application was brought following a ruling of the High Court (Ombija, J) of 19 December 2001 in H.C.C.C. No. 464 of 2000, upholding preliminary objections and holding that the Society had no locus standi to institute the suit, as its rights had not been infringed or injured. Applying the settled rule 5(2)(b) test, the Court found two arguable points: first, that the Society is a statutory body created by the Law Society of Kenya Act, Cap 18, with a common seal, and therefore arguably need not sue under the Societies Act (which, if it were an ordinary society, would require invocation of Order 1 rule 8 of the Civil Procedure Rules); second, that the Society's interests could well merge with those of the Judiciary in preserving the land on which the Eldoret High Court is situated. On the nugatory limb, the Court held that if the parcels were alienated the High Court building would belong to someone else, a consequence that could not be allowed. The Court ordered that the status quo then obtaining remain in force pending the hearing and determination of the intended appeal, with the costs of the application to be costs in the intended appeal. No authority was cited in the ruling.

Questions the Court framed

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

  1. 1.Whether the Law Society of Kenya has an arguable appeal against the finding that it lacked locus standi to sue
  2. 2.Whether success in the intended appeal would be rendered nugatory if the status quo sought is not granted

Key legal issues

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01

Arguability of the intended appeal on locus standi

Holding

The Court found at least two arguable points: that the Society, being a statutory body created by the Law Society of Kenya Act, Cap 18, need not sue under the Societies Act; and that its interests merge with those of the Judiciary in preserving the land on which the Eldoret High Court stands.

Reasoning

The Society is a statutory body with a common seal created by the Law Society of Kenya Act, Cap 18, so it arguably need not sue as an ordinary society under the Societies Act; if it were an ordinary society it would need Order 1 rule 8 of the Civil Procedure Rules. Further, its interests could merge with those of the Judiciary in preserving the land housing the Eldoret High Court. These two arguable points sufficed without more.

p. 2
02

Nugatory value limb of rule 5(2)(b)

Holding

The nugatory limb was readily satisfied: if the parcels were alienated to Lima Limited, the High Court building would belong to someone else, an outcome that could not be allowed to happen pending appeal.

Reasoning

The Court held that whether success would be rendered nugatory was 'not a matter of problem'. If the two plots were alienated by the second respondent, the land on which the Eldoret High Court buildings stand would belong to someone else, and that consequence could not be allowed. Preservation of the status quo was therefore necessary to render any appeal meaningful.

p. 2

Legal principles established

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  • On a rule 5(2)(b) application the applicant must show an arguable appeal and that the intended appeal would be rendered nugatory if the order sought is not granted; where both limbs are satisfied, preservation orders will issue.

Court orders

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  1. 1.Status quo now obtaining to remain in force pending the hearing and determination of the intended appeal in respect of plots Eldoret Municipality Block 4/53 and 4/55
  2. 2.Costs of the application to be costs in the intended appeal

The bench

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

RK
majority
Philip Kiptoo Tunoi
majority
AS
majority
On appeal from
High Court of Kenya at Nakuru (delivered at Nairobi)
H.C.C.C. No. 464 of 2000
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules - injunction or stay pending 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.

At this stage we only have to decide if the Society has an arguable appeal and whether success in the intended appeal would be rendered nugatory if the status quo sought is not granted.
p. 2Test for relief under rule 5(2)(b)
Considering all the circumstances of the matter before us we order that the status quo now obtaining do remain in force pending the hearing and determination of the intended appeal.
p. 2Final orders - status quo pending appeal
The costs of this application will be costs in the intended appeal.
p. 2Costs order

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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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, "Law Society of Kenya,Lima Limited,Uasin Gishu Land Registrar v Commissioner of Lands,Lima Limited,Uasin Gishu Land Registrar [2003] KECA 113 (KLR)", Case Analysis (2003). Civil Application No. NAI 181 of 2002. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2003/113/eng@2003-02-28

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