Monirei & another (Suing on behalf of the Estate of Lekiremu Ole Monirei) v Waiyaki & 2 others (Civil Appeal (Application) E007 of 2024) [2024] KECA 1777 (KLR)
The bottom line
#The Court of Appeal blocked the sale of a Kajiado family land parcel pending appeal, granting only a limited order against disposal by the registered owner.
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, if the orders sought are declined and the appeal succeeds, the appeal would be rendered nugatory
- 3.What interim preservation order, if any, should issue pending the hearing and determination of the appeal
Key legal issues
#Arguability of the intended appeal
The appeal was arguable because the memorandum of appeal contends that the ELC erred in finding a sale agreement and in failing to find that the 1st respondent's registration was irregular.
The court applied the twin test for interlocutory relief pending appeal. It examined the memorandum of appeal and found contentions that the ELC erred on the sale agreement and the irregularity of registration. Since an arguable appeal need not necessarily succeed, the identified contentions sufficed to show the appeal was not frivolous.
Nugatory value and preservation of the subject matter
Given the parties' conflicting assertions about occupation and threatened disposal, the court granted a limited order restraining the 1st respondent from disposing of the property pending the appeal.
The applicants asserted occupation and a threat of eviction and disposal, while the respondents asserted non-occupation and no threatened sale. Faced with this contest over the status of the property on the ground, the court fashioned a preservation order limited to restraining disposal by the 1st respondent rather than a broader injunction.
Legal principles established
#- An applicant for an injunction pending appeal must demonstrate that the appeal is arguable and that, if the order is declined and the appeal succeeds, the appeal will be rendered nugatory; an arguable appeal is not one that will necessarily succeed.
Court orders
#- 1.An order restraining the 1st respondent from disposing of the property known as Title Number Kajiado/Olchoro-Onyore/1327 pending the hearing and determination of the appeal
- 2.The costs of the application shall abide by the outcome of the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Environment and Land Court at Kajiado
- Jurisdiction invoked
- Appellate jurisdiction of the Court of Appeal over appeals from the Environment and Land Court (Constitution of Kenya, Article 164); interlocutory jurisdiction to preserve the subject matter of an intended appeal pending hearing and determination of the appeal.
Relief refused
#Full injunction against all respondents restraining them from selling, transferring or disposing of the property
Given the contest as to the status of the property on the ground, the court granted only the narrower order of restraint against the 1st respondent's disposal of the property
Costs
The costs of the application shall abide by the outcome of the appeal.
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.
To succeed in their application, the applicants are required to demonstrate that the appeal is arguable and that should we decline to grant the orders sought, and the appeal eventually succeeds, the appeal will be rendered nugatory.
Bearing in mind that an arguable appeal is not one that will necessarily succeed, we are persuaded that the appeal is not frivolous. It is arguable.
In the circumstances, the order, that commends itself to us, which we hereby grant, is an order restraining the 1st respondent from disposing of the property known as Title Number Kajiado/Olchoro-Onyore/1327 pending the hearing and determination of this appeal.
The costs of the application shall abide by the outcome of the appeal.
Issues in the judgment
#The judgment extract does not state the appeal's case number, the names of the parties, or a neutral citation; these fields are inferred or left null.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Monirei & another (Suing on behalf of the Estate of Lekiremu Ole Monirei) v Waiyaki & 2 others (Civil Appeal (Application) E007 of 2024) [2024] KECA 1777 (KLR)", Case Analysis (2024). Not stated in the extract (Civil Appeal, Court of Appeal, Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1777/eng@2024-12-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.