[2020] KECA 465 (KLR)
The Court of Appeal found that the intended appeal was arguable and that, unless a stay of proceedings was granted, the suit could proceed before a court that may lack jurisdiction, thereby rendering the appeal nugatory. The court emphasized the constitutional allocation of jurisdiction over land matters to the...
Source-derived case information.
- Citation
- [2020] KECA 465 (KLR)
- Parties
- Applicant: Akhan Holdings Limited; Applicant: Sammy Boit Arap Kogo; Respondent: National Social Security Fund Board of Trustees
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Civil Application 94 of 2020
- Procedural Posture
- Civil Application / Application for Injunction And/or Stay of Proceedings Pending Appeal
- Outcome
- Application allowed. Orders for injunction and/or stay of proceedings granted as sought. No order as to costs.
- Judges
- RN Nambuye, GG Okwengu, DK Musinga
- Legal Topics
- Stay of Proceedings, Injunctions, Jurisdiction of Courts, Transfer of Suit, Land Ownership Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Akhan Holdings Limited
Applicant
Sammy Boit Arap Kogo
Applicant
National Social Security Fund Board of Trustees
Respondent
Procedural Posture
Civil Application / Application for Injunction And/or Stay of Proceedings Pending Appeal
Legal Issues
- 1 Whether the applicants are entitled to an injunction and/or stay of proceedings pending appeal.
- 2 Whether the High Court had jurisdiction to hear the dispute concerning ownership of L.R. No. 18486 or whether it should be before the Environment and Land Court.
- 3 Whether proceeding with the suit in the Commercial and Admiralty Division would render the intended appeal nugatory.
Ratio Decidendi
The Court of Appeal found that the intended appeal was arguable and that, unless a stay of proceedings was granted, the suit could proceed before a court that may lack jurisdiction, thereby rendering the appeal nugatory. The court emphasized the constitutional allocation of jurisdiction over land matters to the Environment and Land Court and determined that the applicants had satisfied the threshold for grant of a stay of proceedings pending appeal. The absence of opposition from the respondent further supported the grant of the orders sought.
Court Disposition
Application allowed. Orders for injunction and/or stay of proceedings granted as sought. No order as to costs.
Orders
- An injunction and/or stay of proceedings pending the hearing and determination of the appeal is granted.
- No order as to costs.
Full Case Text
Judgment text and source record
32 paragraphs
IN THE COURT OF APPEAL
AT NAIROBI
(CORAM: NAMBUYE, OKWENGU & MUSINGA, JJ.A.)
CIVIL APPLICATION NO. 94 OF 2020
BETWEEN
AKHAN HOLDINGS LIMITED...........................................................1STAPPLICANT
SAMMY BOIT ARAP KOGO...............................................................2NDAPPLICANT
AND
NATIONAL SOCIAL SECURITY FUND BOARD OF TRUSTEES......RESPONDENT
(Being an appeal from the Judgment of the High Court of Kenya at Nairobi
(Farah Amin, J.)dated on 19thNovember 2019)in H.C.C.C. No. 268 OF 2004)
************************************
RULING OF THE COURT
1. This is an application for an injunction and/or stay of proceedings pending the hearing and determination of an appeal against the ruling and order of Farah Amin, J. delivered on 19th November, 2019.
2. The facts that gave rise to this application are that sometime in August2019 the applicants filed an application seeking to transfer HCCC No. 268 of 2004from the Commercial and Admiralty Division of the High Court to the Environment and Land Court. The gravamen of that application was that the suit raised pertinent questions touching on ownership of a parcel of land known as L.R. No. 18486 and under Article 162 (2) (b) of the Constitution it is only the Environment and Land Court that has jurisdiction to determine the dispute.
3. Vide a ruling delivered on 19th November 2019, the learned judge dismissed the application on grounds, inter alia, that what was before the court was a dispute that fell squarely within the jurisdiction of the Environment and Land Court, but that notwithstanding, directed that the file be placed before the presiding judge of the Commercial and Admiralty Division for re-allocation.
4. The application was not opposed and no appearance was made by the respondents.
5. We are satisfied that the intended appeal is arguable. As regards thenugatory aspect, we agree with the applicant’s contention that unless the orders sought are granted the suit may proceed to be heard and determined before a court that may have no jurisdiction.
6. We therefore grant the orders as sought and make no orders as to costs.
Dated and delivered at Nairobi this 7thday of August, 2020.
R.N. NAMBUYE
...................................
JUDGE OF APPEAL
HANNAH OKWENGU
..................................
JUDGE OF APPEAL
D.K. MUSINGA
...................................
JUDGE OF APPEAL
I certify that this is a true copy of the original.
Signed
DEPUTY REGISTRAR