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Court of AppealPartially AllowedCivil Application (Nairobi) - rule 5(2)(b) application (number not stated in judgment)

Ruben & 8 others v Nderitu & another (Civil Application 182 of 1989) [1989] KECA 70 (KLR)

Court of Appeal of Kenya
9 November 1989
JNJ. O. NyarangiJGJ. E. GicheruRKR. O. Kwach
1,352 words in judgment
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The bottom line

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Kenya's Court of Appeal stopped construction of a college on land bound by restrictive covenants, protecting neighbours' right to a meaningful appeal.

What this practically means

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Executive summary

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The nine named plaintiffs, owners of residential properties in Rosslyn Estate, Nairobi, applied under rule 5(2)(b) of the Court of Appeal Rules for a stay of the ruling of Shields J delivered on 11th October 1989 in High Court Civil Case No 1097 of 1989, dismissing their application for a temporary injunction against the defendants, the registered owners of Plot LR No 7788/13 in the same estate. The judge had refused interim relief, finding no prima facie case and observing that the restrictive residential-user covenants were of no present value and possibly an attempt to preserve a 'European colony or ghetto' through the rule in Tulk v Moxhay. The defendants had obtained a change of user from the Nairobi City Commission and begun constructing a fashion college. The Court of Appeal restated the twin principles governing rule 5(2)(b) applications: the applicant must show an arguable intended appeal and that, if successful, it would be rendered nugatory; the Court exercises original jurisdiction and decides the matter denovo, not as an appeal against the judge's discretion. The Court found the challenge to the judge's holding on enforceability of the covenants to be a substantial and arguable issue, and held that allowing construction to proceed would make a successful appeal a pyrrhic victory, a fait accompli. The Court allowed the application, restrained the defendants from breaching covenant 2(b) and from acting on the change of user certificate pending the intended appeal, ordered costs of the application to be in the appeal, and declined to require an undertaking as to damages. The judgment is a single decision of the full bench of three Judges of Appeal and binds subordinate courts on the rule 5(2)(b) principles it restates.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the intended appeal is arguable (not frivolous)
  2. 2.Whether the intended appeal, if successful, would be rendered nugatory unless a stay/injunction is granted
  3. 3.Whether the plaintiffs should be required to give an undertaking as to damages

Key legal issues

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01

Test for relief under rule 5(2)(b) of the Court of Appeal Rules

Holding

The applicant must show an arguable appeal and that the appeal would be rendered nugatory if the relief is not granted.

Reasoning

The Court restated the twin principles long applied under rule 5(2)(b): first, the applicant must satisfy the Court that the intended appeal is not frivolous but arguable; secondly, the appeal, if successful, would be rendered nugatory. The Court emphasised that it exercises original jurisdiction and considers the matter denovo, not as an appeal against the trial judge's discretion.

p. 2
02

Arguability of the appeal concerning enforcement of restrictive covenants

Holding

The contention that the learned judge's finding that the covenants were unenforceable was wrong in law was a substantial, arguable issue.

Reasoning

The plaintiffs would contend on appeal that the judge erred in holding the restrictive covenants unenforceable, including his remarks about the rule in Tulk v Moxhay and the change in the character of the neighbourhood. The Court regarded the enforceability of the covenants as a substantial issue of law that could not be dismissed as frivolous.

p. 2
03

Nugatory value of the appeal

Holding

If construction of the college proceeded and the appeal succeeded, the plaintiffs would be presented with a fait accompli rendering the appeal nugatory.

Reasoning

The Court reasoned that allowing construction to continue would mean that, should the appeal succeed, the plaintiffs' victory would be pyrrhic: the college would already have been built. The Court held such a consequence should not befall a litigant exercising the right of appeal, justifying injunctive relief pending the appeal.

p. 2
04

Whether an undertaking in damages should be required

Holding

No undertaking as to damages would be required from rule 5(2)(b) applicants.

Reasoning

Counsel for the defendants requested an undertaking as to damages. The Court declined, holding that because the applicants were exercising their undoubted right of appeal, requiring such an undertaking would be a draconian fetter on that right. This reflects the original-jurisdiction character of rule 5(2)(b) applications.

p. 3

Legal principles established

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  • In a rule 5(2)(b) application the Court of Appeal exercises original jurisdiction and must be satisfied that the intended appeal is arguable and that, if successful, it would be rendered nugatory absent the relief sought.
  • A rule 5(2)(b) application is not an appeal from the trial judge's discretion; the Court applies its mind afresh.
  • An applicant under rule 5(2)(b) need not give an undertaking as to damages as a condition of relief.

Court orders

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  1. 1.The defendants restrained from breaching or attempting to breach the restrictive covenants in the Transfer dated 19th June 1952 pertaining to Plot LR No 7788/13, in particular covenant 2(b), until the hearing and determination of the intended appeal or further order
  2. 2.The defendants restrained from acting or attempting to act in pursuance of the change of user certificate dated 21st August 1989 granted by the Nairobi City Commission, until the hearing and determination of the intended appeal or further order
  3. 3.Costs of the application to be in the appeal

The bench

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One judgment of the whole court — no separate or dissenting opinions.

JN
majority
JG
majority
RK
majority
On appeal from
High Court of Kenya at Nairobi
High Court Civil Case No 1097 of 1989
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules

Relief refused

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Undertaking as to damages sought by the defendants

The Court held that requiring an undertaking would fetter the applicants' right of appeal

p. 3

Costs

Costs of the application to be in the appeal

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

In dealing with rule 5(2)(b) applicants, this Court exercises original jurisdiction and this has been so stated in a long line of cases decided by this Court.
p. 2Jurisdiction under rule 5(2)(b)
the applicant must show that the intended appeal is not frivolous, or put the other way round, he must satisfy the court that he has an arguable appeal. Secondly, it must be shown that the appeal, if successful, would be rendered nugatory
p. 2Twin principles for rule 5(2)(b) relief
Accordingly, we allow the application and make the following orders:
p. 3Disposition
Costs of the application to be in the appeal.
p. 3Costs
The plaintiffs are exercising their undoubted right of appeal and this right should not be fettered by the imposition of such a draconian measure.
p. 3Undertaking as to damages refused

Issues in the judgment

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minor

The judgment says the application was brought by ten applicants but only nine names are listed in the parentheses.

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (4)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Ruben & 8 others v Nderitu & another (Civil Application 182 of 1989) [1989] KECA 70 (KLR)", Case Analysis (1989). Civil Application (Nairobi) - rule 5(2)(b) application (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1989/70/eng@1989-11-09

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.