Esther Nyawira Mucunu v John Mwangi Kariuki
The bottom line
#Kenya's Court of Appeal refused to block an eviction because the landowner never filed a notice of appeal or draft grounds showing what she wanted to challenge.
What this practically means
#Executive summary
#Key legal issues
#Whether the applicant satisfied the twin test for relief under Rule 5(2)(b)
The Motion failed because the applicant neither lodged a notice of appeal against the ruling being challenged nor attached a draft memorandum of appeal, so no arguable appeal was demonstrated.
The court found that the applicant's notice of appeal was against a 2020 judgment, not the 12th October 2023 ruling which the Motion sought to challenge. Without a notice of appeal against that ruling and without a draft memorandum of appeal showing the intended grounds, the applicant could not show an arguable appeal or give the court any reason to issue an injunction. The mere fact that the ELC had ordered eviction did not suffice.
Proper procedural vehicle for such applications in the Court of Appeal
Order 3 Rule 9A of the Civil Procedure Rules 2010 has no application in the Court of Appeal; relief is sought under Rule 5(2)(b) of the Court of Appeal Rules 2022. Grounds of Opposition have no place in the rules of the Court.
The applicant cited Order 3 Rule 9A of the Civil Procedure Rules 2010, but the court stated that provision has no application in the Court of Appeal, whose jurisdiction to issue injunctions in appropriate cases is donated by Rule 5(2)(b) of the Court of Appeal Rules 2022. The court also noted that the respondent's Grounds of Opposition have no place in the rules of the Court.
Legal principles established
#- An applicant under Rule 5(2)(b) must demonstrate that the appeal or intended appeal is arguable (not frivolous) and that it would be rendered nugatory absent stay or relief.
- A notice of appeal must be lodged against the specific decision challenged on appeal, and the applicant must show what will be argued on appeal (e.g. via a draft memorandum); a mere order of eviction by the lower court does not itself justify an injunction.
Court orders
#- 1.The Motion is dismissed
- 2.No order on costs, the respondent not having filed a replying affidavit
- On appeal from
- Environment and Land Court
- Not stated in the judgment
- Jurisdiction invoked
- Rule 5(2)(b) and Rule 42 of the Court of Appeal Rules 2022 (applicant also invoked Order 3 Rule 9A Civil Procedure Rules 2010, which the court held 'has no application in this Court')
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Esther Nyawira Mucunu v John Mwangi Kariuki", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/170/eng@2024-02-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.