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Court of AppealAllowedCivil Appeal No. 164 of 1997

BEATRICE YAGAN vs JOSEPH YATOR [1998] KECA 132 (KLR)

Court of Appeal of Kenya
25 September 1998
JGJ.E. GicheruRKR.O. KwachGPG.S. Pall
328 words in judgment
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The bottom line

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Kenya's Court of Appeal restored a tenant's injunction against eviction from a Government house and made the other side pay her legal costs.

What this practically means

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Executive summary

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This was a short consent appeal before the Court of Appeal at Nakuru (Gicheru, Kwach and Pall, JJ.A.) against a ruling of Rimita J. delivered on 29th July 1996 in H.C.C.C. No. 324 of 1996. The High Court had dismissed the appellant's application for a temporary injunction to restrain the respondent from evicting her from a Government house on Plot L.R. No. Nakuru/Municipality Block 10/185, known as Government House No. MG/45, and from carrying out construction works on the premises. The appellant occupied the house as a civil servant, while the respondent claimed it had been allocated to him outright by the Government. At the hearing of the appeal, counsel for the respondent conceded the appeal so that the matter could be heard and determined substantively in the superior court. Counsel for the appellant did not object but sought costs on the ground that his client had been put to great expense. The Court agreed with both counsel and, having regard to the history of the case, allowed the appeal, set aside the ruling and order of Rimita J., and substituted an order granting the appellant a temporary injunction in terms of prayers (b) and (c) of the Chamber Summons dated 1st July 1996, together with the costs of the application. The appellant was also awarded the costs of the appeal. The judgment was delivered at Nakuru on 25th September 1998 as a single judgment of the Court. No authorities or statutes are cited, and the decision turns entirely on the concession and the costs discretion.

Questions the Court framed

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

  1. 1.Whether the appeal should be allowed by consent so that the dispute over occupation of the Government house can be heard and determined substantively in the superior court
  2. 2.Whether the appellant should be granted a temporary injunction restraining her eviction from the suit premises and construction works thereon
  3. 3.Whether the appellant is entitled to costs of the application and of the appeal

Key legal issues

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01

Whether the respondent's concession of the appeal warranted allowing the appeal and granting the temporary injunction

Holding

The Court accepted the respondent's concession, allowed the appeal, set aside the High Court ruling dismissing the injunction application, and substituted an order granting the temporary injunction in terms of prayers (b) and (c) of the Chamber Summons dated 1st July 1996.

Reasoning

Counsel for the respondent conceded the appeal so that the matter could be heard and determined substantively in the superior court, and counsel for the appellant raised no objection but sought costs given the expense incurred. The Court agreed with both positions and, having regard to the history of the case, awarded the appellant the costs of the application and of the appeal.

p. 2
02

Whether the appellant was entitled to costs despite the consent resolution

Holding

The Court awarded the appellant the costs of the injunction application in the High Court and the costs of the appeal, having regard to the history of the case and the expense she had been put to.

Reasoning

Although the appeal was resolved by concession rather than contested argument, the appellant's counsel asked for costs because his client had been put to great expense. The Court, 'having regard to the history of this case', agreed and granted costs both of the application below and of the appeal.

p. 2

Legal principles established

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  • Where an appeal is conceded so that a dispute may be heard and determined substantively in the superior court, the appellate court may allow the appeal, set aside the interlocutory ruling and substitute an order granting the interlocutory relief sought, with costs to the party put to expense.

Court orders

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  1. 1.Appeal allowed
  2. 2.Ruling and order of Rimita J. dated 29th July 1996 set aside
  3. 3.Substituted order granting the appellant a temporary injunction in terms of prayers (b) and (c) in the Chamber Summons dated 1st July 1996
  4. 4.Costs of the application in the High Court granted to the appellant
  5. 5.Costs of the appeal granted to the appellant

The bench

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

JG
majority
RK
majority
GP
majority
On appeal from
High Court of Kenya at Nakuru
H.C.C.C. No. 324 of 1996
Jurisdiction invoked
First appeal to the Court of Appeal against an interlocutory ruling of the High Court (no specific constitutional or statutory provision is cited in the judgment)

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.

Accordingly, we allow this appeal, set aside the ruling and order of Rimita J. dated 29th July, 1996 and substitute therefor an order granting the appellant a temporary injunction in terms of prayers (b) and (c) in the Chamber Summons dated 1st July, 1996 together with costs.
p. 2Final orders - appeal allowed by consent, injunction granted
The appellant will also have the costs of this appeal.
p. 2Costs of the appeal
Mr. Sogon, for the respondent, concedes the appeal so that, as he says, and we agree, the matter can be heard and determined substantively in the superior court.
p. 2Basis of the decision - concession to enable substantive hearing

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "BEATRICE YAGAN vs JOSEPH YATOR [1998] KECA 132 (KLR)", Case Analysis (1998). Civil Appeal No. 164 of 1997. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1998/132/eng@1998-09-25

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