Selina Mecca Wekesa v Kennedy Ellam Wekesa & 4 others [2014] KECA 396 (KLR)
The bottom line
#The Court of Appeal stopped any sale or transfer of disputed Ndivisi land parcels until an appeal over alleged fraud is heard.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the intended appeal is arguable
- 2.Whether, were the intended appeal to succeed, its success would be rendered nugatory unless the restraining orders and inhibition sought are granted
Key legal issues
#Test for granting a stay or injunction pending appeal under Rule 5(2)(b)
The applicant must satisfy both the arguability limb and the nugatory-ness limb to the satisfaction of the court before the orders sought can issue.
The court reaffirmed the settled two-limb test from Ishmael Kagunyi Thande vs HFCK and Reliance Bank Ltd vs Norlake Investments Ltd. The jurisdiction under Rule 5(2)(b) is original and discretionary but must be exercised judiciously, not capriciously. Both limbs are cumulative and must be demonstrated before orders issue.
Whether the intended appeal was arguable
The intended appeal was arguable on the question whether fraud was proved against the respondents and the effect of the trial judge's finding on the final judgment; a single arguable point suffices.
The court perused the annexed judgment and the draft grounds of appeal and considered the lengthy history of the dispute, including the allegation that a subdivision occurred in disobedience of a registered order of inhibition issued in the Mombasa suit. It found the fraud question arguable, noting that even one arguable point satisfies the threshold.
Whether the success of the intended appeal would be rendered nugatory without the orders
The court could not rule out the applicant's fear that the respondents might dispose of the suit properties to third parties, rendering any success nugatory.
Considering the history of the matter, the court accepted that if the application were refused, the respondents might dispose of the suit parcels to third parties before the intended appeal was heard, placing the properties beyond the applicant's reach and rendering the appeal's success nugatory.
Legal principles established
#- An applicant under Rule 5(2)(b) must demonstrate both that the intended appeal is arguable and that its success would be rendered nugatory absent the orders sought; both limbs must be satisfied.
- In determining a Rule 5(2)(b) application the Court of Appeal exercises original, discretionary jurisdiction which must be exercised judiciously.
- A single arguable point suffices to satisfy the arguability limb.
Court orders
#- 1.The respondents are each restrained jointly and severally, by themselves, their servants, agents, workers and/or anyone claiming through them, from disposing of, fencing off, developing, alienating and/or in any other way dealing with land parcels NDIVISI/MUCHI/6457, 6458, 6459, 6460, 6461, 6462 and 6463 to the detriment of the applicant, pending the hearing and determination of the intended appeal
- 2.An inhibition order issued against the Land Registrar, Bungoma County from registering any transfer, charge, dealings or any transactions on land parcel Nos. NDIVISI/MUCHI/6457, 6458, 6459, 6460, 6461, 6462 and 6463 pending the hearing and determination of the intended appeal
- 3.The first, second and third respondents to pay the costs of the Notice of Motion
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court at Bungoma
- Civil Case No. 54 of 2006
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In the result, the two limbs are satisfied and the applicant is entitled to the orders sought in prayers (d) and (e).
The respondents are each restrained jointly and severally by themselves, their servants, agents, workers and/or anyone claiming through them from disposing off, fencing off, developing, alienating and/or in any other way dealing with the suit lands registration numbers NDIVISI/ MUCHI/6457, 6458, 6459, 6460, 6461, 6462 and 6463 to the detriment of the applicant, pending the hearing and determination of the intended appeal
further an inhibition be and is hereby issued inhibiting the Land Registrar, Bungoma County from registering any transfer, charge, dealings or any transactions on land parcel Nos. NDIVISI/ MUCHI/6457, 6458, 6459, 6460, 6461, 6462 and 6463 pending the hearing and determination of the intended appeal.
The first, second, and third respondents to pay costs of the Notice of Motion. Orders accordingly.
For an applicant to succeed he must not only show his appeal or intended appeal is arguable, but that unless the court grants him an injunction or stay as the case may be, the success of the appeal will be rendered nugatory.
Issues in the judgment
#The judgment contains internally inconsistent dates: the Notice of Motion is dated 17th June, 2014 in one passage and 17th June, 2014 elsewhere described as 'dated 17th June, 2014', while the case number is Civil Application No. 46 of 2013; also the Bungoma suit is referred to as 'Civil Case No. 54 of 2008' in one passage but 'H.C.C.C NO. 54 OF 2006' and 'Civil Case No. 54 of 2006' elsewhere.
The judgment records the Notice of Appeal as dated 9th June, 2014 but the trial judgment as delivered on 6th July 2014, which is internally contradictory as an appeal notice cannot precede the judgment.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Selina Mecca Wekesa v Kennedy Ellam Wekesa & 4 others [2014] KECA 396 (KLR)", Case Analysis (2014). Civil Application No. 46 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/396/eng@2014-09-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.