[2002] KECA 200 (KLR)
The Court of Appeal found that the intended appeal was arguable and that both parties agreed to the maintenance of the status quo. The court exercised its discretion under rule 5(2)(b) of the Court of Appeal Rules to grant an injunction restraining the respondents from trespassing onto or interfering with the...
Source-derived case information.
- Citation
- [2002] KECA 200 (KLR)
- Parties
- Applicant: Hubert L. Martin; Applicant: Cyril Odendo; Applicant: Facet Khaemba; Applicant: Church of God of Prophecy; Respondent: Margaret Kamar; Respondent: Damaris Lenayara; Respondent: Eileen Kendagor; Respondent: Mary Kaparo (Suing as Trustees of Rift Valley Maendeleo Ya Wanawake Organisation)
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Civil Application 263 of 2001
- Procedural Posture
- Stay Application / Application for Injunction Pending Appeal
- Outcome
- Application for injunction pending appeal granted.
- Legal Topics
- Injunctions, Locus Standi, Title to Land, Stay of Execution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Hubert L. Martin
Applicant
Cyril Odendo
Applicant
Facet Khaemba
Applicant
Church of God of Prophecy
Applicant
Margaret Kamar
Respondent
Damaris Lenayara
Respondent
Eileen Kendagor
Respondent
Mary Kaparo (Suing as Trustees of Rift Valley Maendeleo Ya Wanawake Organisation)
Respondent
Procedural Posture
Stay Application / Application for Injunction Pending Appeal
Legal Issues
- 1 Whether the applicants are entitled to an injunction pending appeal.
- 2 Whether the applicants have locus standi to hold the disputed property.
- 3 Whether the respondents have a better title to the property despite their title being later in time.
Ratio Decidendi
The Court of Appeal found that the intended appeal was arguable and that both parties agreed to the maintenance of the status quo. The court exercised its discretion under rule 5(2)(b) of the Court of Appeal Rules to grant an injunction restraining the respondents from trespassing onto or interfering with the disputed property until the final determination of the intended appeal. The applicants were also ordered to stop further development of the property during the same period. The court balanced the interests of both parties and preserved the subject matter of the dispute pending the outcome of the appeal.
Court Disposition
Application for injunction pending appeal granted.
Orders
- An injunction is issued restraining the respondents and their agents from trespassing onto or interfering with parcel No. NAKURU MUNICIPALITY/BLOCK 16/219 until the final determination of the applicants' intended appeal.
- The applicants are to stop further development of the property within the same period.
Full Case Text
Judgment text and source record
31 paragraphs
IN THE COURT OF APPEAL AT NAKURU
CORAM: GICHERU, SHAH & BOSIRE, JJ.A.
CIVIL APPLICATION NO. NAI 263 OF 2001 (143/01 UR)
BETWEEN
HUBERT L. MARTIN
CYRIL ODENDO
FACET KHAEMBA
CHURCH OF GOD OF PROPHECY ..... APPLICANTS
AND
MARGARET KAMAR
DAMARIS LENAYARA
EILEEN KENDAGOR
MARY KAPARO (Suing as Trustees of RIFT VALLEY MAENDELEO YA WANAWAKE ORGANISATION) ... RESPONDENTS
Application for stay of execution in an intended appeal from the ruling and order of the High Court of Kenya at Nakuru (Rimita J) dated 15th June, 2001 in H.C.C.C. NO. 473 OF 2000) **************
RULING OF THE COURT
This is an application for an injunction brought under rule 5 (2) (b) of the Rules of this Court . The dispute between the parties in the application concerns property to which both have certificates of title and each of them claims to have a better title to it than the other. The superior court declined to grant a temporary injunction to the applicants against the respondents on the ground that the applicants lacked the locus standito hold landed property, and also on the ground that the respondents, although their title is later in time to that of the applicant, had a better title to the property in dispute. The applicants intend to appeal against that decision and have lodged a notice of appeal, and pray that they be granted an injunction pending the lodgment and determination of the intended appeal.
Counsel for the respondents concedes that the intended appeal is arguable and prays that, if we are minded to grant the injunction prayed for then it should be on terms that the status quo on the property be maintained pending the determination of the intended appeal. Counsel for the applicants being agreeable the order that commends itself to us is to grant the application dated 15th June, 2001 and order that an injunction issues restraining the respondents by themselves and or their agents from trespassing onto or interfering with parcel No. NAKURU MUNICIPALITY/BLOCK 16/219until the final determination of the applicants' intended appeal. The applicant to stop further development of the property within the same period. The costs of the application shall be in the intended appeal.
Dated and delivered at Nakuru this 21st day of February,
2002.
J. E. GICHERU
---------------
JUDGE OF APPEAL
A. B. SHAH
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JUDGE OF APPEAL
S. E. O. BOSIRE
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JUDGE OF APPEAL
I certify that this is a
true copy of the original.
DEPUTY REGISTRAR