Hadiya Construction & Mineral Limited v Ajabu East Africa Limited [2018] KECA 241 (KLR)
The bottom line
#Kenya's Court of Appeal refused to stop an opponent from using disputed land because Hadiya's lease was unregistered, unstamped, and expired.
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, absent an order of injunction, the intended appeal will be rendered nugatory if it succeeds
Key legal issues
#Whether the intended appeal is arguable
The intended appeal was not arguable; it depended on a lease agreement that was unregistered, unstamped and expired, and on a society whose legal status was doubtful, so the applicant could not show a bona fide interest to be protected.
The court examined the draft memorandum of appeal and held arguability turns on whether the intended issues are bona fide rather than frivolous. Because the applicant sought an interlocutory injunction, it had to show a bona fide interest. The lease agreement was neither registered nor stamped, thus potentially inadmissible, and had expired on 31st July 2018 with no evidence of renewal. Doubt also surrounded the society's registration. On that material the appeal was not arguable.
Whether the intended appeal would be rendered nugatory absent an injunction
The applicant failed the nugatory test; its loss, if any, was compensable by damages and it was not in possession of the suit properties, which were registered in neither its name nor the society's name.
The cause of action concerned carting away soil for commercial mineral extraction. The applicant was not in possession of the suit property and neither it nor the purported lessor society held title to the parcels. Given those circumstances the court could not conclude that the intended appeal would be rendered otiose if the injunction were refused.
Whether a notice of appeal sufficed to anchor the Rule 5(2)(b) motion
Yes; the notice of appeal lodged in the Environment & Land Court on 8th March 2018 was sufficient to anchor the application.
The court noted the notice of appeal attached to the motion was lodged the day after the impugned ruling. It confirmed that such a notice is sufficient to anchor an application invoking the court's powers under Rule 5(2)(b) of the Court of Appeal Rules.
Legal principles established
#- Rule 5(2)(b) applications require the applicant to satisfy the twin tests of an arguable appeal and that the appeal will be rendered nugatory if the injunction is not granted.
- A single bona fide ground suffices to establish arguability, and an arguable appeal need not necessarily succeed.
- An interlocutory applicant must demonstrate a bona fide interest capable of protection, which cannot rest on an unregistered, unstamped and expired agreement inadmissible in evidence.
Court orders
#- 1.The notice of motion dated 14th March 2018 seeking an injunction pending the hearing and determination of the intended appeal is dismissed
- 2.Costs of the application to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Environment & Land Court at Kakamega
- Kakamega Environment & Land Case No. 196 of 2016
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules
Relief refused
#Temporary injunction restraining the respondent from accessing or interfering with the identified properties pending the hearing and determination of the intended appeal
The applicant failed to establish an arguable appeal and failed to show the appeal would be rendered nugatory absent the injunction; the lease agreement was unregistered, unstamped and expired, and any loss is compensable by damages
Costs
The notice of motion is dismissed with costs (costs awarded to the respondent).
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.
it is restricted to determining on the basis of the material on record, first, whether his intended appeal is arguable, and second, whether, absent an order of injunction, that appeal will be rendered nugatory if it succeeds.
On whether the appeal is arguable it is sufficient if a single bonafide ground of appeal is raised.
An arguable appeal is not one which must necessarily succeed but one which ought to be argued fully before the court; one which is not frivolous
The notice of motion has no merit. It is accordingly dismissed with costs.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Hadiya Construction & Mineral Limited v Ajabu East Africa Limited [2018] KECA 241 (KLR)", Case Analysis (2018). Civil Application No. 21 of 2018 (UR 17/2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/241/eng@2018-10-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.