Martin Chiponda & 4 others v Bandari Investment Company Limited & 5 others [2018] KECA 303 (KLR)
The bottom line
#Kenya's Court of Appeal dismissed squatters' challenge to interim orders protecting their access to contested Mombasa land, ruling the judge's discretion was properly exercised.
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 orders issued on 19th December 2017 were properly issued
- 2.Whether the orders conclusively determined the suit at an interlocutory stage
- 3.Whether the learned Judge considered extraneous matters, including the direction that a census of occupants be conducted
Key legal issues
#Whether the impugned orders were conclusive orders that conferred possession of the suit land on the 1st respondent and disposed of the suit at an interlocutory stage
The orders were not conclusive; they preserved the status quo by allowing a two-foot perimeter wall, guaranteed the appellants' access and protection of existing structures, and directed no evictions.
The Court examined the actual terms of the orders of 4th and 19th December 2017 and found they did not evict anyone or grant exclusive possession. The wall was limited in height, appellants retained unfettered access, and existing structures were protected. The orders were conservatory, aimed at maintaining the status quo in a highly acrimonious dispute, and did not substantially dispose of the petition.
Whether the Court of Appeal could interfere with the trial judge's exercise of discretion
No; the trial Judge exercised discretion judiciously and the appellants showed no misdirection, misapprehension of facts or plainly wrong decision under the Shah Mbogo/Mrao parameters.
The Court restated the settled limits on appellate interference with discretionary decisions and found none of the five grounds established. The trial court's efforts were aimed at maintaining the status quo, neither party was accorded possession to the exclusion of the other, and the appellants suffered no demonstrated prejudice.
Whether the trial Judge misdirected himself by directing a census of occupants that had not been sought in the pleadings
The ground failed because appellants' counsel had, before the trial court, acquiesced to the exercise by offering to convene a committee and file a list of occupants.
The Court quoted counsel's own statement before the trial judge in which he offered an undertaking to supply a list of individuals on the land and prevent new entrants. Having acquiesced and indicated willingness to spearhead the exercise, the appellants could not turn around and fault the Judge for ordering the census.
Whether pending litigation over the suit land barred the grant of conservatory/interlocutory relief
The multiplicity of suits arose from squatters introducing more squatters onto the land, and the other proceedings were no bar to conservatory orders.
Relying on the 1st respondent's supporting affidavit, the Court found that the earlier eviction proceedings and their quashing did not touch the propriety of interim relief. The appellants' acquiescence and the acrimonious history instead justified conservatory orders to prevent further escalation and bloodshed.
Legal principles established
#- An appellate court will not interfere with the exercise of discretion by a trial court except within the limited parameters set out in Shah Mbogo and Mrao: misdirection in law, misapprehension of facts, taking into account considerations it should not have, failing to take account of considerations it should have, or a decision that is plainly wrong.
- An intermediate appellate court, in an interlocutory appeal where the suit remains pending for full hearing, must refrain from making conclusive or definitive findings on the matters in dispute so as not to prejudge the pending suit.
Court orders
#- 1.The appeal was dismissed
- 2.Costs of the appeal were awarded to the 1st respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the judgment
Wrote the judgment
- On appeal from
- Environment and Land Court at Mombasa
- E&LC Const. Petition No. 15 of 2017
- Jurisdiction invoked
- First appeal against an interlocutory order of the Environment and Land Court (Court of Appeal appellate jurisdiction)
Relief refused
#Appellants' request that the Court interfere with the trial judge's discretionary orders of 19th December 2017 and set them aside
The appellants failed to demonstrate that the Judge misdirected himself in law, misapprehended the facts, or that his decision was plainly wrong; the orders merely preserved the status quo and conferred no possession on the 1st respondent
Costs
Appeal dismissed with costs to the 1st 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.
The Court of Appeal is only entitled to interfere if one or more of the following matters are established: first, that the judge misdirected himself in law; secondly, that he misapprehended the facts; thirdly, that he took account of considerations of which he should not have taken account; fourthly, that he failed to take account of considerations of which he should have taken account, or fifthly, that his decision, albeit a discretionary one, is plainly wrong.
this court must refrain from making any conclusive or definitive findings on the matters in dispute to avoid prejudging or prejudicing the pending suit
We hold the firm view that this appeal is totally devoid of merit. We dismiss it with costs to the 1st respondent.
Issues in the judgment
#The judgment refers to the 'Shah Mbogo case' as having been 'rehashed earlier in this judgment', but the only discretion-interference authority extracted earlier is United India Insurance Co. Ltd v. East African Underwriters (Kenya) Ltd; the Shah Mbogo citation is never given in full
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Martin Chiponda & 4 others v Bandari Investment Company Limited & 5 others [2018] KECA 303 (KLR)", Case Analysis (2018). Civil Appeal No. 21 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/303/eng@2018-09-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.