Homescope Properties & another v Gachuki & Odera (Sued as Chairman & Secretary of Karen Ngong View Estate ) & another (Civil Application E534 of 2023) [2024] KECA 1410 (KLR)
The bottom line
#Kenya's Court of Appeal refused to stop a ruling blocking an estate's access road, because the situation could easily be reversed if the appeal later succeeds.
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 the intended appeal will be rendered nugatory unless the orders of stay of execution and injunction are granted
Key legal issues
#Whether the intended appeal is arguable
The intended appeal is arguable, including on the interpretation of Section 9 of the Public Roads and Roads of Access Act, but arguability alone does not secure the orders
The Court found from the Memorandum of Appeal that the learned ELC Judge may have erred in his interpretation of Section 9 of the Public Roads and Roads of Access Act and in concluding that the contentious road is private. Citing Transouth Conveyors, it held one arguable ground suffices, and an arguable appeal need not necessarily succeed.
Whether the intended appeal would be rendered nugatory if the orders are not granted
The appeal would not be rendered nugatory because the position sought to be stayed or injuncted is reversible
It was common ground that the road through Karen Ngong View Estate is an alternative access route, Eve Gardens Estate having access through Jogoo Road. If the appeal succeeds, the barriers blocking access can be ordered removed and are easily removable. Both limbs of the rule 5(2)(b) test must be satisfied; the second failed.
Legal principles established
#- An applicant under rule 5(2)(b) need not establish many arguable grounds; a single arguable ground suffices
- Whether the success of an appeal will be rendered nugatory must be assessed on the circumstances of each particular case, considering whether what is sought to be stayed is reversible
Court orders
#- 1.The applicants' application dated 14th November 2023 is dismissed
- 2.No orders as to costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Environment and Land Court
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules (stay of execution and injunction pending appeal)
Relief refused
#Stay of execution of the ELC judgment and decree of 5th October 2023
The intended appeal is arguable but what is sought to be stayed is reversible; the appeal will not be rendered nugatory as the barriers blocking access are easily removable
Injunction restraining enforcement of the notice dated 31st October 2023 denying access through Karen Ngong View Estate
The second limb of the rule 5(2)(b) test was not satisfied; Eve Gardens Estate retains access through Jogoo Road
Costs
No orders as to costs, the Court noting that the parties are residents welfare associations
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.
In the result, the applicants' application dated 14th November 2023 fails and is hereby dismissed.
Considering that the parties are residents welfare associations, we will make no orders as to costs in this instance.
A solitary issue, if it is arguable on appeal, is of course suficient to warrant favourable treatment of an application under rule 5(2)(b).
an arguable appeal is not one that will necessarily succeed
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Homescope Properties & another v Gachuki & Odera (Sued as Chairman & Secretary of Karen Ngong View Estate ) & another (Civil Application E534 of 2023) [2024] KECA 1410 (KLR)", Case Analysis (2024). Civil Application (rule 5(2)(b)) dated 14th November 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1410/eng@2024-10-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.