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Court of AppealAllowedNot stated in the judgment· [2024] KECA 83 (KLR)

Wanjiru (Suing as the administrator of the Estate of the Late Francis Mbugua Njoroge (Deceased) & another v Thagishu (Sued as the legal representative of the Estate of Dominique Thagishu Karari) (Civil Application E541 of 2023) [2024] KECA 83 (KLR)

Court of Appeal
9 February 2024
1,042 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal allowed land occupants to keep possession pending appeal, ruling that one arguable issue plus risk of a pointless appeal is enough.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Nairobi dated February 9, 2024 on a notice of motion dated November 17, 2023 brought under rule 5(2)(b) of the Court of Appeal Rules. The applicants, who occupy land known as Dagoretti/Riruta 4809, sought an injunction restraining the respondent from evicting them in execution of a judgment of the Environment and Land Court (Mbugua, J) issued on October 26, 2023, which declared the Estate of Dominique Thagishu Karari the absolute owner of the parcel, declared the applicants trespassers, ordered them to vacate within 45 days, and awarded costs. The respondent's title traced to a 1990 sale agreement and a consent judgment in Nairobi HCCC No. 3216 of 1994. The applicants contended their title was procured fraudulently and that the original title had never been surrendered. The Court of Appeal restated the twin principles for rule 5(2)(b) relief: the applicant must establish an arguable appeal and that the appeal would be rendered nugatory if relief is withheld, both limbs being mandatory. The court found the validity of the respondent's title arguable, noting a single arguable issue suffices. On the nugatory limb, it noted an unsuccessful attempt to enforce the decree and, to preserve the substratum of the dispute given the applicants' decades of occupation and development, held it just to maintain the status quo. The application was allowed, the appeal to be heard on priority basis, with costs in the cause. The decision below was not disturbed at this interlocutory stage.

Key legal issues

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01

Test for relief under rule 5(2)(b)

Holding

The applicant must demonstrate an arguable appeal that is not frivolous and that the appeal will be rendered nugatory if the order sought is not granted; both limbs must be satisfied.

Reasoning

The court restated the established twin principles governing rule 5(2)(b) applications, citing Reliance Bank Ltd (in Liquidation) v Norlake Investments Ltd. It emphasised that satisfying one principle alone is not enough. The applicant bears the burden of establishing both limbs before the Court will exercise its discretion to grant an injunction or stay pending the hearing of an intended appeal.

p. 2
02

Threshold of arguability

Holding

A single arguable issue is sufficient; the validity of the respondent's title was held to be a matter worthy of consideration.

Reasoning

Applying the arguability limb, the court found that the question of the validity of the respondent's title - given that the applicants still held the original title which was never surrendered - raised serious questions deserving consideration. The court held that a single arguable issue suffices and the applicants need not establish multiple arguable grounds.

p. 3
03

Nugatory aspect and preservation of the substratum of the dispute

Holding

Given the applicants' long occupation and development of the land and an unsuccessful attempt to enforce the decree, it is in the interest of justice that status quo be maintained pending appeal.

Reasoning

The respondent's replying affidavit showed an attempt to enforce the decree by eviction which was not successful. The court weighed the applicants' investment in and development of the property over many decades and concluded that preserving the substratum of the dispute and the interest of justice required maintenance of the status quo pending the hearing and determination of the appeal.

p. 3

Legal principles established

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  • An applicant under rule 5(2)(b) must satisfy both the arguability and nugatory-ness limbs; satisfying only one is insufficient.
  • A single arguable ground suffices for rule 5(2)(b) purposes; the applicant need not establish a multiplicity of arguable grounds.

Court orders

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  1. 1.The notice of motion dated November 17, 2023 is allowed
  2. 2.The appeal to be heard on a priority basis
  3. 3.Costs in the cause
On appeal from
Environment and Land Court
Not stated in the judgment
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules

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, "Wanjiru (Suing as the administrator of the Estate of the Late Francis Mbugua Njoroge (Deceased) & another v Thagishu (Sued as the legal representative of the Estate of Dominique Thagishu Karari) (Civil Application E541 of 2023) [2024] KECA 83 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/83/eng@2024-02-09

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