RAHAB WAITHIRA NDERU & 6 OTHERS v JOSEPHINE MUKAMI NDERU [2007] KECA 351 (KLR)

The court applied the two-limb test governing rule 5(2)(b) applications. On arguability it relied on its own reading of the grounds of appeal and the material on record, reinforced by counsel on both sides agreeing, that a serious question arises whether Ransley J was right to reject the family trust claim and the claim that the applicants had acquired interests in the land by adverse possession. That single point was treated as sufficient to cross the arguability threshold without needing to belabour any other grounds of appeal.

Both counsel accepted that if the respondent could sell or otherwise encumber the land pending appeal, a successful appeal would be rendered nugatory because the subject matter would be lost. The respondent herself undertook, in the superior court and in her affidavit in reply, not to alienate the land before the appeal is heard, and did not oppose a stay conditional only on her continued enjoyment of it. Her affidavit explained that the land remained vacant because of real and threatened violence from Zakayo, so a restraint on dealings was adequate protection.

The applicants wanted the land kept unoccupied, citing houses and three graveyards which the respondent might interfere with. The court held that the superior court's findings, that the respondent is the lawful owner entitled to uninterrupted use, remain valid until vacated on appeal and cannot be wished away merely because an appeal is pending. Since the suit land was in fact vacant, leaving the registered owner in possession displaced no one; that, and not vacancy, was the true status quo the court would preserve.

The applicants were uncomfortable relying on the respondent's undertaking, which their counsel characterised as a mere undertaking, and pressed for deposit of the title in court as security. The court did not order deposit. It instead directed, as it considered just, that the land not be sold or otherwise alienated or encumbered pending the appeal, a restraint on registry dealings which protects the appellant's position against third parties without disturbing the registered owner's possession of the vacant land.

In rejecting the applicants' attempt to displace the respondent's possession, the court stressed that the existence of a pending appeal does not wish away the judgment under appeal. The declaration that the respondent is the lawful owner entitled to uninterrupted use continued to govern the parties until this Court, on appeal, vacates it. That principle underpinned the court's identification of possession by the registered owner, rather than vacancy, as the status quo to be maintained pending the hearing of Civil Appeal No. 99 of 2006.