Samoei v Samoei (sued on behalf of the Estate of the late Joseph Kisorio Samoei) & 3 others (Civil Application E123 of 2023) [2023] KECA 1544 (KLR)
The bottom line
#The Court of Appeal refused to block land dealings pending appeal because any harm could be fixed later with money, though it agreed the appeal itself was worth hearing.
What this practically means
#Executive summary
#Key legal issues
#Test for injunction pending appeal under rule 5(2)(b)
Applicant must show an arguable appeal and that the appeal would be rendered nugatory without the injunction
The court restated the settled two-limb test from Stanley Kang'ethe Kinyanjui v Tony Ketter. Counsel for the applicant wrongly conflated interlocutory injunction principles (prima facie case, irreparable damage, balance of convenience) with the rule 5(2)(b) test, which the court held inapplicable.
Arguability of the intended appeal
The appeal was arguable because it raised triable issues on the resulting trust finding and revocation of title
The applicant challenged the legal basis of the trial court's finding of a resulting trust and the revocation of his 1993 title without proof of fraud. The court held the threshold low, requiring only one non-frivolous triable issue, and found the applicant merited an opportunity to argue these concerns.
Nugatory aspect
The appeal would not be rendered nugatory absent the injunction
The title had already been transferred to the deceased's name by court process; there was no risk of interference other than through a court-sanctioned process in which the applicant, as a beneficiary, would be a necessary party. Boundary changes or occupation changes were reversible and compensable in damages.
Legal principles established
#- An applicant under rule 5(2)(b) must demonstrate an arguable appeal and that the appeal will be rendered nugatory absent the order
- The threshold for an arguable appeal is low - it need not succeed, only be non-frivolous; one triable issue suffices
- Whether an appeal will be rendered nugatory depends on whether what is to be stayed or injuncted is reversible or compensable in damages, considered in the circumstances of each case with the conflicting claims of both sides
Court orders
#- 1.The applicant's notice of motion application dated May 16, 2023 is dismissed
- 2.No order as to the costs of the application
- On appeal from
- Environment and Land Court
- Kitale Land Case No 45 of 2019
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules (injunction/stay pending appeal)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Samoei v Samoei (sued on behalf of the Estate of the late Joseph Kisorio Samoei) & 3 others (Civil Application E123 of 2023) [2023] KECA 1544 (KLR)", Case Analysis (2023). Notice of motion dated May 16, 2023 (Civil Appeal arising from Kitale Land Case No 45 of 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/1544/eng@2023-12-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.