Almer Farm Limited v National Land Commission, Chief Land Registrar & Betty Rono (Sued as the Executrix of estate of the late David Rono) (Civil Appeal (Application) 5 of 2021) [2021] KECA 469 (KLR)
The bottom line
#The Court of Appeal dismissed Almer Farm's bid to halt the excision of 400 acres, because it used the wrong legal procedure instead of the required 28-day appeal.
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 to the Court of Appeal is arguable
- 2.Whether, if arguable, the appeal would be rendered nugatory absent the conservatory orders and injunctions sought
Key legal issues
#Arguability of the intended appeal against the striking out of the applicant's Motion before the ELC
The intended appeal is not arguable; the ELC Judge was right that judicial review was not the appeal contemplated by Regulation 29 of the NLC (Investigation of Historical Injustices) Regulations.
The applicant had submitted to the NLC's jurisdiction; proceedings were conducted and a decision gazetted under the law creating the NLC. Regulation 29 required an aggrieved person to file an appeal within 28 days. The applicant did not do so, instead instituting judicial review, contrary to the prescribed procedure. Following the Karume principle, the prescribed procedure had to be strictly followed, leaving no arguable point.
The nugatory prong of the rule 5(2)(b) test
Having found no arguable point, the court did not need to address whether the appeal would be rendered nugatory.
Under the established two-limb test, arguability is considered first; where the applicant fails on the first limb, the court need not consider the second. The court accordingly declined to assess the nugatory-ness of the intended appeal.
Legal principles established
#- Where there is a clear procedure for redress of a particular grievance prescribed by the Constitution or an Act of Parliament, that procedure must be strictly followed.
- An applicant under rule 5(2)(b) must first demonstrate that the intended appeal is arguable (not frivolous) and, in addition, that it would be rendered nugatory absent stay.
Court orders
#- 1.The Motion is dismissed
- 2.Costs of the Motion to the 3rd respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Environment and Land Court of Kenya at Kitale
- ELC Cause No. 4 of 2019
- Jurisdiction invoked
- Rules 5(2)(b), 41, 42 and 47 of the Court of Appeal Rules (application for injunction/conservatory orders pending appeal)
Relief refused
#Conservatory order restraining the Chief Land Registrar from acting on the determination of 7th February 2019 or interfering with title L.R. No. 8940 pending hearing and determination of Eldoret Civil Appeal No. E015 of 2021
The intended appeal has no arguable points; the applicant failed to follow the appeal procedure prescribed by the National Land Commission (Investigation of Historical Injustices) Regulations and instead applied for judicial review.
Injunction restraining the 3rd respondent from interfering with the suit parcel pending the appeal
Same failure to demonstrate an arguable appeal; the applicant had submitted to the NLC's jurisdiction and did not pursue the prescribed 28-day appeal.
Temporary injunction staying the NLC's decision of 7th February 2019 and the Gazette Notice published on 1st March 2019 pending the appeal
No arguable point established under the rule 5(2)(b) principles.
Costs
Dismissed with costs to the 3rd 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.
We cannot see any arguable point in the appeal and being of that view we need not address the nugatory aspect of the matter. The Motion fails and is dismissed with costs to the 3rd respondent.
There is considerable authority for the statement that where there is a clear procedure for redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed
For an applicant to succeed it must, firstly, demonstrate that the appeal is an arguable one which is the same as saying that it is not frivolous. Such an applicant must, in addition, show that the appeal would be rendered nugatory absent stay
Issues in the judgment
#The citation for Stanley Kangethe Kinyanjui v Tony Ketter & Others appears in the judgment as '[2103] eKLR', an evident typographical error for [2013] eKLR.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Kakuzi PLC v Kituamba Kaloleni IDPs & 2 others (Environment and Land Appeal E064 of 2024) [2026] KEELC 5165 (KLR)[2026] KEELC 5165 (KLR)30 Jul 2026distinguished
- Nyamwanga v Alfredy & 4 others (Environment & Land Petition E003 of 2024) [2025] KEELC 3585 (KLR)[2025] KEELC 3585 (KLR)23 Apr 2025
Cite this brief
#Cite this brief
Caselaw, "Almer Farm Limited v National Land Commission, Chief Land Registrar & Betty Rono (Sued as the Executrix of estate of the late David Rono) (Civil Appeal (Application) 5 of 2021) [2021] KECA 469 (KLR)", Case Analysis (2021). Civil Appeal (Application) No. 5 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/469/eng@2021-07-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.