Julius Gichuki Gichuhi (by substitution and being a legal representative of the estate of the late Gichuhi Kimira) v Samuel Ngunu Kimotho & 3 others [2019] KECA 926 (KLR)
The bottom line
#Kenya's Court of Appeal refused to block land dealings during an appeal because the other side could pay back the property's value if the appeal succeeded.
What this practically means
#Executive summary
#Key legal issues
#Whether the intended appeal was arguable
Yes - the issues whether the suit had abated, whether accounts had to be taken before any lawful sub-division, and whether sub-division in fact occurred (the defunct Nairobi City Council having disowned it) were bona fide arguable points for the appeal.
The court identified disputes over abatement of a suit already heard and determined, absence of accounts before sub-division, and conflicting evidence on whether sub-division took place. It held these raise bona fide issues determinable only on appeal and, not being required to assess their merits, found one arguable point suffices under rule 5(2)(b).
Whether the appeal would be rendered nugatory without an injunction
No - the second limb failed because the estate could refund the value of the property and could only dispose of the portion registered in the name of the late Maaka Mukuhi Mugweru.
A title search showed L.R. No. 13041/2 registered to the late Maaka Mukuhi Mugweru, and the applicant did not dispute the estate's capacity to refund the value if the appeal succeeded. The respondent could dispose only of its own portion, so the appeal would not be rendered nugatory.
Legal principles established
#- To obtain relief under rule 5(2)(b) an applicant must demonstrate both that the intended appeal is arguable and that it would be rendered nugatory if not granted; both limbs must coexist.
- An arguable appeal is any appeal that raises at least one bona fide issue deserving consideration; the court does not inquire into the merits of whether the arguments will succeed.
Court orders
#- 1.The application dated the 5th June, 2017 is dismissed
- 2.The respondents shall not interfere in any way with L.R. Number 13041/3
- On appeal from
- High Court of Kenya at Nairobi
- HCCC No. 880 of 1977 (Consolidated with HCCC No. 908 of 1977)
- Jurisdiction invoked
- Rules 5(2)(b) and 42 of the Court of Appeal Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Julius Gichuki Gichuhi (by substitution and being a legal representative of the estate of the late Gichuhi Kimira) v Samuel Ngunu Kimotho & 3 others [2019] KECA 926 (KLR)", Case Analysis (2019). Civil Application No. NAI. 277 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/926/eng@2019-02-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.