https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1388

Kenya Hotels Properties Limited v Attorney General & 7 others (Civil Appeal (Application) E1083 of 2025) [2026] KECA 1388 (KLR) (10 July 2026) (Ruling) Neutral citation: [2026] KECA 1388 (KLR) Republic of Kenya In the Court of Appeal at Nairobi Civil Appeal (Application) E1083 of 2025 LK Kimaru, M Sila & JO Okello, JJA July 10, 2026 Between Kenya Hotels Properties Limited Appellant and The Hon Attorney General 1st Respondent Kenya Anti-Corruption Commission 2nd Respondent Willesden Investments Limited 3rd Respondent Kenya Revenue Authority 4th Respondent The Commissioner of Lands 5th Respondent Chief Land Registrar 6th Respondent City Council of Nairobi 7th Respondent Development Bank of Kenya 8th Respondent Ruling 1.The application before this Court is that dated 19 February 2026 filed by the Ethics and Anti-Corruption Commission (EACC), the successor of the 4th respondent in this appeal (Kenya Anti-Corruption Commission) and a cross-appellant. We heard the application on 20 May 2026 and allowed it, with the orders being issued on the same day. We pronounced that we would give the reasons later, as provided by Rule 37 (4) of the Rules of this Court. The reasons are contained in the substantive ruling herein. 2.The application under consideration named two respondents, respectively being Willesden Investment Limited (2nd respondent in the main appeal) and the Chief Land Registrar (6th respondent in the main appeal). For ease of reference, we will refer to the two as the 1st and 2nd respondents. The application seeks the following three substantive orders being:1.That pending the hearing and determination of this appeal and cross-appeal, an order of injunction to issue restraining the 1st respondent from selling, transferring, charging, leasing, alienating, or in any manner whatsoever dealing with the title No. 209/12748; IR 279446.2.That pending the hearing and determination of this appeal and cross-appeal, an order of injunction to issue restraining the 2nd respondent from registering any dealings, transfers, encumbrances, or other interests against the title No. 209/12748; IR No. 279446.3.That pursuant to Rule 31 of the Court of Appeal Rules, leave be granted to the applicant to introduce as additional evidence in this appeal a copy of the title issued to the 1st respondent on 2nd May 2025. 3.The application is supported by the affidavit of Pius Maithya, who is employed by the applicant as an investigator. He deposed that he is a member of the team that investigated the allocation, survey and issue of grant for the parcel LR No. 209/12748 (the suit property), which is the subject of the impugned judgment that was delivered on 30 January 2025. He deposed that the EACC has filed a cross appeal against that judgment. He avers that after the judgment, the 1st respondent processed title to the suit property and that the issuance of this title poses a real and imminent risk that the 1st respondent may transfer, charge, or otherwise alienate the suit property to third parties, thereby defeating the substratum of the cross-appeal. He avers that the cross- appeal raises arguable issues of law, and that a transfer of the suit property may render the cross-appeal nugatory. 4.Apart from the 1st respondent, the application was not opposed by the other parties in this appeal. In opposition to the application, the 1st respondent filed a replying affidavit sworn by one Ben Muli, a director of the company. He acknowledges that the suit property is registered in the name of the 1st respondent and that the 1st respondent retains physical possession of the same. He avers that the impugned judgment asserted the validity of the 1st respondent’s ownership of the title, save that the court addressed clerical and/or survey related discrepancies, and gave directions to the Director of Surveys on the remedial actions. He avers that surrender of the original title and issue of a new title to the 1st respondent was in compliance with the judgment and that no fraud was demonstrated against the 1st respondent. He contends that the applicant has not revealed any irreparable harm, and that no injunctive orders have ever been issued, or been in place, in the manner sought by the applicant, for over two decades. He avers that there is therefore no imminent risk as alluded by the applicant to warrant issue of injunctive orders at the appeal stage. He contends that the balance of convenience tilts in favour of maintaining the status quo, and that granting an injunction would amount to indirectly depriving the 1st respondent its proprietary rights, without due process, and on an unjustifiable basis. He urges that the application be dismissed with costs. 5.At the hearing of the application, Mr. Wambugu, learned counsel, appeared for the applicant. Mr. Ochieng, learned counsel, holding brief for Mr. Oyatta, was present for the 1st respondent. Ms. Otieno, learned counsel holding brief for Ms. Almadi, was present for the 4th respondent in the appeal, Kenya Revenue Authority (named as 3rd interested party in the application) while Mr. Gichuhi SC, was present for the appellant in the appeal, Kenya Hotels Limited respondent, (named as 1st interested party in the application). Both Mr. Wambugu and Mr. Ochieng made oral highlights to buttress the respective positions of their clients, whereas Ms. Otieno and Mr. Gichuhi SC mentioned that they do not oppose the application. 6.In his submissions, Mr. Wambugu, learned counsel, submitted that the appeal is arguable and that the appeal may be rendered nugatory if the orders are not granted. On the other hand, Mr. Otieno, learned counsel, confirmed that his client does not wish to oppose the prayer on adducing additional evidence. He however pressed the point that his client objects to the injunctive prayers in the application. He submitted inter alia that the property is not going to be lost in any way, and that there is no plausible reason to grant the orders in the manner framed. 7.We have given utmost consideration to the application, the reply thereto, and the submissions of counsel. 8.As earlier pointed out, the application before us seeks three substantive prayers. The first two are injunctive in nature and the third prayer seeks to adduce additional evidence on appeal, which evidence comprises the title to the suit property, issued to the 1st respondent after delivery of the judgment that is the subject of this appeal. The prayer to adduce additional evidence is not opposed by any of the parties to this appeal and we see no reason why it should be denied. It is hereby granted. What is opposed are the injunctive orders which we now proceed to address. 9.The injunctive orders are sought pursuant to Rule 5 (2) (b) of the Rules of this Court. The principles upon which a court considers such application are now well settled. Principally, the applicant needs to demonstrate two issues. First, that the appeal is arguable, and secondly, that if the orders of injunction are not granted, then the appeal may be rendered nugatory if successful [See case of Stanley Kangethe Kinyanjui v Tony Ketter & 5 Others (2013) KECA 378 (KLR)]. We are alive to these principles as we determine the contested prayer for injunction. 10.First, on arguability of the appeal, we discern that the main issue before the Environment and Land Court regarded the ownership of the suit property. The predecessor of the applicant (Kenya Anti-Corruption Commission) was plaintiff in the suit Nairobi ELC No. 35 of 2010. The appellant on the other hand was petitioner in ELC Petition No. 28 of 2020. The two suits were consolidated for hearing and the judgment covered both cases. The position of the applicant was that the suit property was illegally created from a public road and in its suit, it sought inter alia, orders for the cancellation of the title held by the 1st respondent. The appellant, in its suit, also sought nullification of the title of the 1st respondent, among other prayers which we do not consider relevant to spell out in the context of this application. In the judgment, the ELC Judge upheld the validity of the title of the 1st respondent but noted some discrepancies in the survey documents which it directed to be corrected. Aggrieved, the 1st interested party to this application filed an appeal and the applicant filed a cross-appeal to challenge the judgment. The issue in the appeal will be whether or not the suit property is part of a public road or whether the title is valid. That is an arguable point and we are persuaded that the appeal is thus arguable. The applicant has therefore established the first principle i.e that the appeal is arguable. 11.The second principle regards the nugatory aspect. It is apparent to us that unless an order of injunction is issued then there is a risk that the 1st respondent may proceed to sell, transfer, charge, or otherwise adversely deal with the suit property, to the detriment of the applicant who has filed a cross-appeal. If that happens, the substratum of the appeal may be lost, as third parties may end up being owners, and it may render the appeal nugatory. We are therefore persuaded that unless the orders of injunction are issued, the appeal may be rendered nugatory. 12.It will be discerned from the foregoing that we are persuaded that the applicant has established the two principles under Rule 5 (2) (b) and thus deserving of the orders of injunction sought. 13.Overall, we make the following orders given that the prayer to adduce additional evidence was not opposed:a.That pending the hearing and determination of this appeal, an order of injunction is hereby issued barring the 1st respondent from selling, transferring, charging, leasing, alienating, or in any manner whatsoever dealing with the title No. 209/12748, IR No. 279446.b.That pending the hearing and determination of this appeal, there is hereby issued an order of inhibition, restricting the registration of any sale, charge, lease, or any other disposition in the register of the land parcel LR 209/12748 I.R 279446.c.That pursuant to Rule 31 of the Court of Appeal Rules, 2022, the applicant is granted leave to adduce additional evidence in this appeal being the copy of the title deed issued to the 1st respondent on 2nd May 2025.d.That costs of the application will abide the outcome of the appeal. DATED AND DELIVERED AT NAIROBI THIS 10TH DAY OF JULY, 2026L. KIMARUJUDGE OF APPEAL....................................MUNYAO SILAJUDGE OF APPEAL....................................DR. J. O. OKELLOJUDGE OF APPEALI certify that this is a true copy of the originalSignedDEPUTY REGISTRAR