[2013] KECA 495 (KLR)

IN THE COURT OF APPEAL

AT NAIROBI

(CORAM: KIHARA KARIUKI, (P), MUSINGA & OUKO JJ.A)

CIVIL APPLICATION NO. NAI 101 OF 2012 (UR 79/2012)

IN THE MATTER OF AN INTENDED APPEAL

BETWEEN

ISAAC GATHUNGU WANJOHI…............................................. 1ST APPLICANT

ISAIAH KIRINDI WAMBUGU MUTONYI ….............................. 2ND APPLICANT

AND

THE ATTORNEY GENERAL …................................................ 1ST RESPONDENT

MINISTER OF ROADS …........................................................ 2ND RESPONDENT

KENYA URBAN ROADS AUTHORITY…............................... 3RD RESPONDENT

CHINA ROAD AND BRIDGE CORPORATION ….................. 4TH RESPONDENT

CHIEF ENGINEER (ROADS) MINISTRY OF ROADS............. 5TH RESPONDENT

THE COMMISSIONER OF LANDS ….................................... 6TH RESPONDENT

ROSALINE NJERI MACHARIA ….......................................... 7TH RESPONDENT

(An application for injunction pending the lodging, hearing and determination of an intended appeal from the judgment and decree of the High Court of Kenya at Nairobi (Majanja, J) dated 30th March, 2012

in

NAIROBI PETITION NO. 154 OF 2011)

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RULING OF THE COURT

The applicants petitioned the High Court to declare that,

i) the respondents have violated the applicants' right to property under Article 40 (1) and (3) of the Constitution,

ii) the respondents have committed trespass to the applicants' land.

They also sought that the respondents be restrained by a permanent injunction from permitting the Eastern Bypass, Mombasa Road – North Airport Road, to pass across the applicants' parcel of land, L.R. No. 209/12052 (the suit property) or from interfering with the suit property.

The respondents for their part have maintained that the suit property was, since the 1980's, set apart as a buffer zone for Mombasa Road and as such was not available for private development; that its allocation to the original title holder (Bach Industries Co. Ltd) and subsequent transfer to the applicants was illegal and contrary to public policy. For this reason, the 6th respondent caused the revocation of the title by Gazatte Notice No. 9230 of 29th July 2011.

In dismissing the petition, the High Court (Majanja, J.) made the following orders:-

“a) I declare that Gazette Notice Number 9230 appearing in the issue dated 29th July 2011 null and void.

b) I award the petitioners Kshs. 2,000,000. 00 as general damages for the breach of Article 47 of the Constitution against the 1st, 2nd, 3rd, 5th and 6th respondent.

c) If the State wishes to commence legal proceedings to establish the legality or otherwise of LR 209/12052, it must do so within 12 months from the date of this judgment, in default, the petitioners are at liberty to apply to this court for determination of further relief.

d) The 1st, 2nd, 3rd, 5th and 6th respondents shall pay the petitioners' costs.

e) There shall be no order as to costs in respect of the 4th and 7th respondents.”

The applicants intend to challenge that decision in this Court and have filed a notice of appeal. In the meantime, they have filed the instant motion dated 10th April 2012 and filed on 11th April 2012 praying that:-

“.............there be an order of injunction restraining the 1st and 6th respondents by themselves, their servants or agents from entering into, being on, excavating and taking away soil from or bringing stones and crushing them on the said L.R. No. 209/12052 pending the lodging, hearing and determination of the intended appeal.”

The applicants have averred that the intended appeal is arguable and further that unless the prayer for injunction is granted, the intended appeal will be rendered nugatory. In his characteristic industry, Dr. Kamau Kuria, Senior Counsel for the applicants, forcefully submitted and cited decided cases from far and wide to persuade us that with the enactment of Article 159 of the Constitution and Sections 3A and 3Bof the Appellate Jurisdiction Act, this Court's jurisdiction underRule 5 (2) (b)of the Court of Appeal Rules has expanded to include two new considerations, one requiring the Court to act justly and fairly, and secondly, that the Court must consider the hardship the parties involved in a dispute are likely to suffer during the pendency of the dispute - African Safari Club V. Safe Rentals, Civil Application No. 53 of 2010. See also,

Githunguri V. Jimba Credit Ltd [1985] KLR 838

Olivier & Another V. Buttigieg [1966] 2 AII ER 459

Commissioner of Lands & Another V. Coastal Aquaculture Ltd [1997] KLR (E & L) 1 page 264

A. Kaderbhai & Another V. The Commissioner of Lands [1926 – 30) 12 KLR 12.

On behalf of the 1st to 6th respondents, two replying affidavits sworn by Engineer Wilfred Reinhard Oginga, a Senior Engineer at the Kenya Urban Roads Authority were filed in opposition to the motion. It is deposed in those replies that the 1st to the 6th respondents have also filed a notice of appeal to challenge the very judgment the subject of this application; that the respondents are in the process of filing an action to establish the legality of the applicants' title to the suit property as advised (ordered) by the learned Judge; that the High Court properly declined to grant an order of injunction to stop the construction of the road on account of public interest and further that what the applicants are likely to suffer if an injunction is not granted can be compensated by an award of damages; that following the dismissal of the applicants' petition the 1st, 2nd, 3rd and 5th respondents embarked on the construction of the slip road of the Eastern Bypass, Mombasa Road – North Airport Road through the suit property has been completed and opened to the general public hence no purpose will be served by an order of injunction. This last averment has been denied by the applicants who have maintained that only a portion of the suit property has been interfered with by the construction. Mr. Mutinda for the 1st to 6th respondents nonetheless urged us to consider the inconvenience that will be occasioned to the public and the loss the Government is likely to suffer should the construction of the road be stopped by an order of injunction.

The 7th respondent is the registered owner of parcel No. 209/11293/1 which is adjacent to the suit property. She has sworn an affidavit to the effect that she has legitimate expectations to enjoy the frontage of the Mombasa Highway, having developed a well-known restaurant, City Cabanas, on her parcel; and that should it be confirmed that the applicants acquired the suit property lawfully, they would be entitled to full compensation. From the pleadings it is clear to us that the 7th respondent has challenged the applicants' title in a separate action in the High Court. Learned counsel for the 7th respondent, Mr. Abidha, cited the following decisions in support of the foregoing arguments:-

Mitchell V. DPP & Another [1986] LRC 127

Oraro & Rachier Advocates V. Cooperative Bank ofKenya [1999] 1 EA 236

Reliance Bank Ltd V. Norlake Investments Ltd [2002] 1 E.A. 227, among others.

All the authorities cited in the arguments confirm that Rule 5 (2) (b)confers on this Court an original jurisdiction based on the discretion exercisable by the Judges of the Court. The Court has over the years developed certain principles to guide it in the exercise of that discretion. So far, these principles are confined to two considerations (the twin principles). An applicant for either stay of execution, stay of proceedings or an injunction under Rule 5 (2) (b) must demonstrate that the appeal or intended appeal is arguable and secondly, that the appeal or intended appeal will be rendered nugatory if the relief sought is not granted.

An arguable appeal is not one that will succeed. It is simply an appeal which is not frivolous – Tropical Institute of Community Health & Development & 8 others V. Paramount Investments Ltd, Civil Application No. Nai. 316/2004. On the other hand, the term nugatory means more than just worthless but may also mean “futile” or “invalid” – Reliance Bank case (supra).

We are not prepared, as suggested by Dr. Kuria, to accept that the twin principles have metamorphosed into four. Article 159 of the Constitution and Sections 3A and 3B of the Appellate Jurisdiction Act provide general guiding principles to the Courts in the exercise of judicial authority. In appropriate cases, this Court will and has been guided by these principles. To that extent, we agree that the two considerations that were cited by Dr. Kuria must be borne in mind in dealing with an application under Rule 5 (2) (b).

Have the applicants shown that the intended appeal is arguable? It is established that even a single arguable point is sufficient for the grant of orders under Rule 5 (2) (b).The applicants have listed 12 grounds to satisfy this limb. In considering the limb, we are alive to the fact that it is not for us at this stage to make any definitive findings either of fact or law so as not to embarrass the fair hearing of the main appeal.

It would, in our opinion, be a matter of argument before the court when the appeal is heard, whether or not the appellants' title could be revoked in the manner explained in the proceedings before the High Court, namely by a gazette notice issued by the Senior Registrar of Titles, Nairobi – preceded by the recommendation of a working group. Put differently, on appeal, the question will be whether the applicants' title to the suit property was unlawfully acquired, thereby disentitling them to the remedy of an injunction in the High Court. We need not set out any further arguable points and we must therefore proceed to consider whether or not the success in the intended appeal will be rendered nugatory if an order of stay is not granted. It was argued for the applicants that the 4th respondent will continue constructing the bypass across the suit property, which action will deny them the right to use it for putting up offices and a light industry. For their part, the respondents argued that the orders sought are no longer available as they have been overtaken by events.

On our own assessment of the pleadings and arguments, we are satisfied on the evidence so far laid before us that the road being constructed across the suit property, though not complete, has been opened to the public for both motorized and pedestrian traffic. Balancing the rival interests of the parties, we do not see how the on-going construction will render the appeal, if successful, nugatory.Should the appeal succeed, the respondents will simply be ordered to vacate and handover the suit property to the applicants and compensate them for loss of user. Because the applicants have not satisfied both principles, their application fails.

We accordingly dismiss the motion dated 11th April 2012 and order that costs shall be in the appeal.

Dated and delivered at Nairobi this 5th day of July 2013.

P. KIHARA KARIUKI

…......................................................

PRESIDENT, COURT OF APPEAL

D. K. MUSINGA

…................................................

JUDGE OF APPEAL

W. OUKO

…..................................................

JUDGE OF APPEAL

I certify that this is a true copy of the original

DEPUTY REGISTRAR