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Court of AppealAllowedApplication under rule 5(2)(b) of the Court of Appeal Rules, arising from intended appeal against Kericho ELC No. 014 of 2022

Ekaterra Tea Kenya PLC v Mokal Investiment Limited & another (Civil Appeal (Application) E052 of 2023) [2023] KECA 1281 (KLR)

Court of Appeal of Kenya
27 October 2023
868 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal protected Keringet Limited's tea estate from the Kericho County Government pending appeal, showing courts will preserve property when an appeal is arguable.

What this practically means

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Executive summary

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This was an application under rule 5(2)(b) of the Court of Appeal Rules seeking a temporary injunction pending the hearing and determination of an intended appeal against the dismissal, in Kericho ELC No. 014 of 2022, of the applicant's claim for injunctive relief concerning LR No. 9932/2 and excised portions LR 9932/5 and LR 9932/6. The applicant, a limited company represented by Senior Counsel Mr. Kamau Karori, asserted registered ownership, occupation since 1957, tea planting and development, and complained of an October 2022 invasion by the 1st respondent (the County Government of Kericho) that involved cutting down trees. It argued that the appeal would be rendered nugatory because its trees would be harvested and its tea operations interrupted, rendering over 280 employees jobless. Both respondents opposed, contending that the suit property did not exist, that the 1st respondent occupied LR No. 9932/7 over which no orders were sought, that no official search had been exhibited, and that new issues were being introduced. The Court, composed of Musinga, Sichale and Ochieng, JJA, in a single unanimous judgment, applied the settled twin principles from Stanley Kangethe Kinyanjui v Tony Ketter and KCB v Nicholas Ombija. It found the appeal arguable, holding that there was prima facie evidence of the Grant having been temporarily surrendered for excision and returned, of the applicant's occupation, and of an official search exhibited in the record. On the nugatory limb, it found that the 1st respondent was likely to invade, subdivide and interfere with the applicant's operations, destroying tea bushes, mature trees and structures. Both limbs satisfied, the Court allowed the application, granted the injunction, and ordered the respondents to bear the costs of the application. The appeal itself remains pending.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the intended appeal is arguable
  2. 2.Whether, unless the orders sought are granted, the intended appeal would be rendered nugatory

Key legal issues

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01

Whether the intended appeal is arguable

Holding

The intended appeal is arguable because there is prima facie evidence that the applicant holds a Grant temporarily surrendered for excision and later returned, and that it is in occupation of the suit property.

Reasoning

The court found prima facie evidence of the applicant's possession of a Grant in respect of the suit property, temporarily surrendered for excision of two parcels and thereafter returned. The applicant was in occupation, with tea bushes, residential houses for workers and others, and an official search was exhibited in the record. The respondents' contention that the suit property did not exist and that the appeal was not arguable therefore failed.

p. 2
02

Whether the appeal would be rendered nugatory if the injunction is not granted

Holding

The nugatory limb is satisfied because the 1st respondent is likely to invade the suit property, subdivide it and interfere with the applicant's operations, destroying tea bushes, mature trees and structures.

Reasoning

The court accepted that without the interlocutory orders the 1st respondent was likely to invade and subdivide the suit property and to interfere with the applicant's operations, including destruction of tea bushes, mature trees and structures. This would, if the appeal succeeded, render it nugatory. Both limbs of the twin principles being satisfied, the application was allowed.

p. 2

Legal principles established

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  • An applicant under rule 5(2)(b) must demonstrate both an arguable appeal and that the appeal will be rendered nugatory unless the orders sought are granted.
  • An arguable appeal need not be one that must succeed; it is one that prima facie raises issues that are not frivolous.

Court orders

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  1. 1.Temporary injunction pending the hearing and determination of the appeal restraining the 1st respondent and/or its servants and agents from entering, remaining or trespassing upon, cutting down or removing trees, disposing of, alienating, encumbering, charging or in any manner interfering with LR No. 9932/2 and the excisions arising therefrom
  2. 2.The respondents to bear the costs of the application

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
majority
On appeal from
Environment and Land Court, Kericho
ELC No. 014 of 2022
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

An applicant must demonstrate existence of an arguable appeal, and that unless the orders sought are granted, the appeal, if successful, shall be rendered nugatory.
p. 2Rule 5(2)(b) principles
An arguable appeal is not one that must succeed, rather, it is an appeal that prima facie raises issues that are not frivolous, an appeal that ought to be argued fully before this Court.
p. 2Definition of an arguable appeal
Since the applicant has satisfied both limbs of the twin principles for grant of an interlocutory injunction, we hereby allow this application. The respondents shall bear the costs of the application.
p. 2Final orders and costs

Issues in the judgment

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minor

The parties are not fully named in the judgment; only '1st respondent' and '2nd respondent' are used without identifying the 2nd respondent by name.

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Ekaterra Tea Kenya PLC v Mokal Investiment Limited & another (Civil Appeal (Application) E052 of 2023) [2023] KECA 1281 (KLR)", Case Analysis (2023). Application under rule 5(2)(b) of the Court of Appeal Rules, arising from intended appeal against Kericho ELC No. 014 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/1281/eng@2023-10-27

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.