[2020] KECA 751 (KLR)
The Court found that while the applicants' intended appeal was arguable, the relief sought—demolition or removal of a wall or barrier—was drastic and directly related to the disputed ownership of the land. Granting such orders before a determination on ownership would be premature and potentially prejudicial. The...
Source-derived case information.
- Citation
- [2020] KECA 751 (KLR)
- Parties
- Applicant: Patricia Lois Muchiri; Applicant: Julia Wacera Magondu; Applicant: Margaret Wangui Mwaura; Applicant: Lydia Gathoni Wambugu; Applicant: David Kamau Wamathu; Applicant: David Kariuki Wabande; Respondent: The Board of Management, Buruburu Girls Secondary School; Respondent: Nairobi City Council; Respondent: National Land Commission; Respondent: Attorney General; Respondent: Director of Surveys; Respondent: Metropolitan Health Services Ltd
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Civil Application 87 of 2020
- Procedural Posture
- Injunction Application / Application for Injunction Pending Appeal
- Outcome
- application dismissed
- Judges
- GK Oenga, F Sichale
- Legal Topics
- Injunctive Relief, Access to Land, Ownership Disputes, Stay of Execution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Patricia Lois Muchiri
Applicant
Julia Wacera Magondu
Applicant
Margaret Wangui Mwaura
Applicant
Lydia Gathoni Wambugu
Applicant
David Kamau Wamathu
Applicant
David Kariuki Wabande
Applicant
The Board of Management, Buruburu Girls Secondary School
Respondent
Nairobi City Council
Respondent
National Land Commission
Respondent
Attorney General
Respondent
Director of Surveys
Respondent
Metropolitan Health Services Ltd
Respondent
Procedural Posture
Injunction Application / Application for Injunction Pending Appeal
Legal Issues
- 1 Whether the applicants are entitled to an injunction pending appeal to compel removal of a wall, gate, or barrier restricting access to their homes.
- 2 Whether the intended appeal would be rendered nugatory if the injunction is not granted.
- 3 Whether the court should grant interim orders affecting property rights before determination of ownership.
Ratio Decidendi
The Court found that while the applicants' intended appeal was arguable, the relief sought—demolition or removal of a wall or barrier—was drastic and directly related to the disputed ownership of the land. Granting such orders before a determination on ownership would be premature and potentially prejudicial. The Court held that the applicants failed to demonstrate that the intended appeal would be rendered nugatory if the injunction was not granted, as the situation was a fait accompli that should only be reversed upon a full hearing of the appeal. Accordingly, the application for injunction pending appeal was dismissed.
Court Disposition
application dismissed
Orders
- The application for injunction pending appeal is dismissed.
- The applicants’ appeal, once filed, shall be fast-tracked for expedited hearing and disposal.
Full Case Text
Judgment text and source record
46 paragraphs
IN THE COURT OF APPEAL
AT NAIROBI
(CORAM: KIAGE, GATEMBU & SICHALE JJ.A)
CIVIL APPLICATION NO. NAI. 87 OF 2020
BETWEEN
PATRICIA LOIS MUCHIRI...............................................1STAPPLICANT
JULIA WACERA MAGONDU ......................................... 2NDAPPLICANT
MARGARET WANGUI MWAURA ............................... 3RDAPPLICANT
LYDIA GATHONI WAMBUGU ..................................... 4THAPPLICANT
DAVID KAMAU WAMATHU .........................................5THAPPLICANT
DAVID KARIUKI WABANDE ........................................6THAPPLICANT
AND
THE BOARD OF MANAGEMENT
BURUBURU GIRLS SECONDARY SCHOOL......... 1STRESPONDENT
NAIROBI CITY COUNCIL ........................................2NDRESPONDENT
NATIONAL LAND COMMISSION ......................... 3RDRESPONDENT
ATTORNEY GENERAL ............................................ 4THRESPONDENT
DIRECTOR OF SURVEYS ....................................... 5THRESPONDENT
METROPOLITAN HEALTH SERVICES LTD....... 6THRESPONDENT
(An application for injunction pending the hearing and determination of an intended appeal from the judgment and decree of the Environment and Land Court of Kenya at Nairobi (K. Bor, J.) dated 6thMarch, 2019
in
ELC Case No. 251 OF 2010)
********************
RULING OF THE COURT
By the motion dated 15th March 2020, the six applicants, who are owners of various homes within a residential area in Nairobi’s BuruBuru Estate more particularly known as Metro Villas Estate, seek various orders on their own behalf and on behalf of all residents of the said Metro Villas Estate. The main target of their application is the Board of Management of BuruBuru Girls Secondary School, the 1st respondent. They accuse it of having erected a wall, gate and barrier across the entrance to the 34 affected homes via Rabai Road.
Among the orders sought are orders compelling the respondents to remove the said wall, gate, barrier or any obstacle so erected; or to permit the applicants to remove the same at the respondents’ cost; and an injunction restraining the respondents from erecting any such wall, gate or barrier that would interfere with the applicants' access to their homes from Rabai Road.
In view of the extra-ordinary circumstances brought about by the Covid-19 Pandemic, we did not hear the application by way of ordinary courts sitting, confining ourselves to the papers filed by the applicants. The respondents were served but had filed nothing in response by the time the motion came for our consideration on the date it was listed for hearing.
We have considered the said application, the grounds on which it is based and the supporting affidavit of David Kamau Wamathu sworn on 15th March 2020. We have perused the draft memorandum of appeal annexed to the said affidavit and are readily satisfied that the applicants intended appeal is an arguable one.
In order to succeed on application for stay of execution or injunction pending appeal, however, the applicant must in addition demonstrate that the intended appeal would be rendered nugatory unless the interim relief sought is granted. All the applicable principles and the considerations that go into a determination of such application were aptly summarized by this Court in STANLEYKANGETHEKINYANJUI vs. TONY KETTER & 5 OTHERS [2013] eKLR.
On the applicant’s own showing, that which they seek is the demolition or removal of a wall or barrier that is already in place. The propriety of that wall or barrier is inextricably linked to the ownership of the disputed land, which will be for determination in the intended appeal. Before a such determination is made, it would be unwise to grant the drastic orders of demolition that the applicants seek. The nugatory argument thus stands negated by the fact that there is a fait accompli that ought to be reversed only upon a merit determining of the intended appeal. The application for injunction pending appeal accordingly fails.
As the complaints of inconvenience and hardship made by the applicants are serious and not idle, and so as to ensure that there is finality to the matters in dispute, we direct that the applicants’ appeal, once filed, be fast-tracked for expedited hearing and disposal.
The costs of the motion shall be in the intended appeal.
Dated and delivered at Nairobi this 24thday of April, 2020.
P.O. KIAGE
……………………..………………
JUDGE OF APPEAL
S. GATEMBU KAIRU, FCIArb
………………………….……………
JUDGE OF APPEAL
F. SICHALE
……………………….………………
JUDGE OF APPEAL
I certify that this is a
true copy of the original
Signed
DEPUTY REGISTRAR