Ekaterra Tea Kenya PLC v Mokal Investiment Limited & another (Civil Appeal (Application) E052 of 2023) [2023] KECA 1281 (KLR)
The bottom line
#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
#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, unless the orders sought are granted, the intended appeal would be rendered nugatory
Key legal issues
#Whether the intended appeal is arguable
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.
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.
Whether the appeal would be rendered nugatory if the injunction is not granted
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.
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.
Legal principles established
#- 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
#- 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.The respondents to bear the costs of the application
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- 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
#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.
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.
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.
Issues in the judgment
#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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.