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Court of AppealDismissedCivil Application No. 61 of 2005· [2006] KECA 214 (KLR)

Nyokabi Karanja v Kamuingi Housing Co. Limited

Court of Appeal of Kenya
26 May 2006
988 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to stop enforcement of a High Court decision because the applicants filed their appeal late and misled the court about a duplicate application.

What this practically means

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Executive summary

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The four applicants, plaintiffs in H.C.C.C. No. 1508 of 1994 against Kamuingi Housing Co. Limited, sought a stay of execution of a ruling of Ransley, Commissioner of Assize, delivered on 12th February 2002, by which the Commissioner refused to set aside an earlier order dismissing their suit under Order 9 rule 4 of the Civil Procedure Rules for non-attendance. The Commissioner had found their explanation unsatisfactory, noted they had enjoyed an interlocutory injunction for eight years without prosecuting the suit, and considered their claim unmeritorious. A notice of appeal was filed nine days after the ruling. The applicants' rule 5(2)(b) application, filed in February 2005, was supported by a sworn affidavit asserting that an identical 2003 application was still pending. The Court of Appeal, on the respondent's information, called for its own record and found that the 2003 application had in fact been withdrawn on 19th May 2004 at the instance of the applicants' own counsel, who knew the intended appeal was out of time; the court branded the affidavit and counsel's conduct as lies and unworthy of counsel. The court held that although its rule 5(2)(b) jurisdiction arises on filing a notice of appeal, it cannot close its eyes to a conceded, patent incompetence of the appeal, and the applicants failed to show the appeal was arguable. The application was dismissed with costs to the applicants.

Key legal issues

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01

Whether a stay of execution could be granted under rule 5(2)(b) where the underlying appeal is patently incompetent for having been filed out of time and never regularised

Holding

No. The appeal filed on 21st January 2005 was out of time, no extension of time had been sought or granted, and the applicants conceded the appeal's doubtful competence, leaving no proper basis for the exercise of discretion.

Reasoning

The court holds that although its rule 5(2)(b) jurisdiction is triggered by the filing of a notice of appeal, it will not act where the appeal's incompetence is conceded. The threshold requirement that the appeal be arguable was not met; the applicants themselves and the respondent agreed the appeal was of doubtful competence, so the discretion could not be exercised in their favour.

p. 2
02

Whether the applicants' sworn averment that a similar 2003 application was still pending was honest, and the consequence if not

Holding

The averment was false. The earlier identical application (Civil App. No. 64 of 2003) had been withdrawn on 19th May 2004 at the instance of the applicants' own counsel, who then feigned ignorance, conduct the court condemned as unworthy of counsel and inequitable.

Reasoning

On the respondents' information the court called for and inspected its own record, confirming the 2003 application was withdrawn before a different bench. Counsel Mr. Owang knew before the withdrawal that the intended appeal was out of time and needed extension, yet no regularisation was ever made. The court held that such conduct by the appellants and their counsel does not endear itself to a court of equity.

p. 2

Legal principles established

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  • The jurisdiction under rule 5(2)(b) arises upon the filing of a notice of appeal, but where an appeal has been filed and is conceded to be patently incompetent, the court will not exercise its discretion in the applicant's favour; the applicant must show the appeal is arguable and not frivolous.
  • An applicant under rule 5(2)(b) must show that the intended or filed appeal is arguable and not frivolous as a settled threshold principle.
  • Maintaining two parallel and identical applications on the same matter is an abuse of court process.
  • Courts do not act in vain; a party whose conduct is inequitable does not endear itself to the court's discretionary jurisdiction.

Court orders

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  1. 1.The notice of motion dated 2nd February 2005 is dismissed
  2. 2.Costs of the application shall be borne by the applicants
On appeal from
High Court of Kenya at Nairobi
H.C.C.C. No. 1508 of 1994
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules (jurisdiction to grant stay of execution or injunctive relief pending appeal, arising upon filing of a notice of appeal)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Nyokabi Karanja v Kamuingi Housing Co. Limited", Case Analysis (2006). Civil Application No. 61 of 2005. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2006/214/eng@2006-05-26

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