[2020] KECA 556 (KLR)
The Court found that, given the conflicting allegations from both sides regarding the ownership and possible alienation of the suit land, and the fact that the appeal was pending determination, the most appropriate order was to maintain the status quo as at the date of the ruling. The Court noted that China Bridge...
Source-derived case information.
- Citation
- [2020] KECA 556 (KLR)
- Parties
- Applicant: Joseph Mburu Gitau & 626 Others; Respondent: The Commissioner of Police; Respondent: The Commissioner of Lands; Respondent: The Attorney General
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Civil Application 113 of 2008
- Procedural Posture
- Injunction Application / Ruling on Interlocutory Application Pending Appeal
- Outcome
- Status quo order granted; injunction declined.
- Judges
- FI Koome, DK Musinga, F Sichale
- Legal Topics
- Interlocutory Injunctions, Status Quo Orders, Land Alienation Disputes, Judicial Review, Joinder of Parties
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Joseph Mburu Gitau & 626 Others
Applicant
The Commissioner of Police
Respondent
The Commissioner of Lands
Respondent
The Attorney General
Respondent
Procedural Posture
Injunction Application / Ruling on Interlocutory Application Pending Appeal
Legal Issues
- 1 Whether the applicants are entitled to an injunction restraining the respondents from leasing, selling, transferring, or alienating LR No. 209/14582 pending appeal.
- 2 Whether the order can be issued against China Bridge Corporation Ltd, a non-party to the appeal.
- 3 Whether the status quo should be maintained pending delivery of judgment.
Ratio Decidendi
The Court found that, given the conflicting allegations from both sides regarding the ownership and possible alienation of the suit land, and the fact that the appeal was pending determination, the most appropriate order was to maintain the status quo as at the date of the ruling. The Court noted that China Bridge Corporation Ltd was not a party to the appeal, complicating the issuance of direct orders against it. The Court declined to grant the specific injunction sought but ordered that the respondents maintain the status quo until the delivery of the pending judgment, thereby preserving the subject matter and preventing any further alienation or transfer of the land in dispute.
Court Disposition
Status quo order granted; injunction declined.
Orders
- The status quo obtaining as at the date of delivery of this ruling to be maintained by the respondents until the delivery of the pending judgment.
Full Case Text
Judgment text and source record
43 paragraphs
IN THE COURT OF APPEAL
AT NAIROBI
(CORAM: KOOME, MUSINGA & SICHALE. JJA)
CIVIL APPLICATION NO. NAI. UR.113 OF 2010
BETWEEN
JOSEPH MBURU GITAU……………………………………..1STAPPLICANT
FELSISTA WARIARA NDUKU………………….…..………2NDAPPLICANT
ISAAC MBURU NJUGUNA………………………..…………3RDAPPLICANT
KEZIAH WANJA NJUGUNA……………………..………….4THAPPLICANT
CECELIAH WANJIRU GICHURU………………….………5THAPPLICANT
GEOFREY MINHANJI AJAIMBO……………………..……6THAPPLICANT
FLACIA NJOKI MUIRURI………………………………...…7THAPPLICANT
CHRISTIAN MUNJANJI AJAIMBO……………………...…8THAPPLICANT
MARY WAMBUI KAIRAI………………………………...….9THAPPLICANT
FRIDAH KHAVERE AMBANI……………………………..10THAPPLICANT
JOSEPH GIATAU & 626 OTHERS…………...…….……………APPLICANTS
AND
THE COMMISSIONER OF POLICE………...….…….……1STRESPONDENT
THE COMMISSIONER OF LANDS.………..……….……..2NDRESPONDENT
THE ATTORNEY GENERAL….………………...….………3RDRESPONDENT
(Being an application for an injunction and restraining orders pending delivery of judgment pending in Civil Appeal No 179 of 2019 on 10thJuly, 2020 (Koome, Okwengu & J. Mohammed JJA) from the judgment/decree of the High Court of Kenya at Nairobi (Nyamu, J.) dated 2ndMay 2008
in
NRB. JUD. REV. DIV. MISC. APPL. NO. 673 OF 2015)
*********************
RULING OF THE COURT
Before us is a Notice of Motion filed by the applicants under certificate of urgency on 8th May, 2020. It is seeking an injunction and restraining orders against the respondents, from leasing, selling, transferring, or in any way alienating subject property known as LR No. 209/14582 (Original LR No 209/106110) to China Bridge Corporation Ltd, or any other party during the pendency of the appeal which is scheduled for the 10th July, 2010. The application is supported by the affidavit of Ceciliah Wanjiru GichuruandFridah Khavere Ambani. Both deponents make several allegations but key among them is that the respondents are in the process of, or have already leased, or transferred the said land to China Bridge Corporation Ltd so as to defeat the cause of justice as the matter is pending determination by this Court on 10th July, 2010 in Civil Appeal No 179 of 2019.
The application is opposed by the 1st to the 3rd respondents vide a replying affidavit sworn by Chief Inspector Geofrey Waruru Kinyua who has also made serious allegations against the applicants accusing them of forgeries and impugns the process the applicants purported to have used to acquire the said title which he states does not even exists. Key of those allegations is that, apart from the pending judgement in this Court, there is also another suit pending before the Environment and Land CourtbeingELC No 2028 of 2009betweenBenta Kalara AchiengandWilson Mutumba Women Group Vs Attorney General.Which is over the same parcel of land or based on the same facts.
As can be seen from the order sought, it is against China Bridge Corporation Ltd, who were served with the application but were not parties to the Civil Appeal that is pending. Nonetheless, they too have strenuously opposed this application on the grounds that they were not parties to the suit, and the applicants ought to have joined them in the matter. Secondly, the order by Nyamu, J. (as he then was) that gave rise to the appeal, was as a result of judicial review proceedings where there was no order of injunction sought and therefore it cannot be granted a matter that has been finalized and waiting judgement.
Upon considering this application, we recognize that this Court is seized of the appeal which is pending determination of the various issues some of which may have been repeated in the instant application. All the allegations made by the applicants are denied by the respondents who in turn make serious allegations against the applicants. To complicate matters further, the order is to be directed to China Bridge Corporation Ltdwho were not parties to the pending appeal. One matter that is not disputed is that the 1st respondent is in possession of the suit land, but it is not clear to us whether the land has been sold or leased out or alienated in any manner.
In our considered view that, in the face of the conflicting positions taken by each side, the order that commends itself at the moment is one to maintain the status quoobtaining as at the date of delivery of this ruling to be maintained by the respondents until the delivery of the pending judgment.
Dated and delivered at Nairobi this day 10thday of July, 2020
M. K. KOOME
………....………….
JUDGE OF APPEAL
D. K. MUSINGA
…………..………….
JUDGE OF APPEAL
F. SICHALE
...………….………….
JUDGE OF APPEAL
I certify that this is a true copy of the original
Signed
DEPUTY REGISTRAR