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Court of AppealPartially AllowedCivil Application No. 47 of 2006· [2006] KECA 254 (KLR)

Panafrican News Agency v Teleposta Pension Scheme & Others

Court of Appeal of Kenya
5 May 2006
ROR.S.C. OmoloEOE.O. O'KubasuJOJ.W. Onyango Otieno
1,439 words in judgment
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The bottom line

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Kenya's Court of Appeal let a tenant remove its property from disputed premises, but only after paying all rent due when it left.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Nairobi (Omolo, O'Kubasu and Onyango Otieno, JJA) on an application under rule 5(2)(b) of the Court of Appeal Rules and sections 3 and 3A of the Civil Procedure Act for an injunction and stay pending an intended appeal from Wendo, J's dismissal (10 February 2006) of the applicant's interlocutory injunction application in H.C.C.C. No. 1434 of 2005. The dispute was a landlord-tenant matter: Pan African News Agency, a tenant of the 1st respondent, sought to vacate Teleposta Towers after an attempted six-year formal lease aborted for want of the landlord's signature; the landlord hired the 3rd respondent to prevent removal of the applicant's property and demanded rent for the unexpired lease term. The High Court had dismissed the injunction application, holding the plaintiff's case not clear and incontrovertible and requiring viva voce evidence on whether the tenancy could be determined by notice. The Court of Appeal restated the twin rule 5(2)(b) principles - arguability and nugatory-ness - citing Githunguri v Jimba, J.K. Industries and Reliance Bank v Norlake. Noting the 1st and 2nd respondents' non-opposition to prayer 2, the court granted the stay of execution, and further ordered that the applicant be allowed to remove its property from the suit premises upon payment of the total rent due as at the date of leaving, with costs to abide the appeal. The application thus partially succeeded: the broad rent-freezing relief in prayer (iv) was not granted as sought.

Key legal issues

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01

Test for injunction/stay pending appeal under rule 5(2)(b)

Holding

The twin principles of arguability and nugatory-ness must be satisfied, considered against the facts of each case.

Reasoning

The court restated the established rule 5(2)(b) test, citing Githunguri v Jimba, J.K. Industries and Reliance Bank v Norlake, and applied it to the landlord-tenant dispute before it.

p. 3
02

Whether the applicant could remove its property pending appeal

Holding

The applicant was permitted to remove its property upon payment of the total rent due as at the date of leaving the premises.

Reasoning

Taking into account that the 1st and 2nd respondents did not object to prayer 2 (stay), the court balanced the parties' positions by conditioning removal of the property on payment of rent due, rather than rent for the unexpired lease term.

p. 3

Legal principles established

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  • The jurisdiction under rule 5(2)(b) is both original and discretionary, and an applicant must satisfy the twin principles of arguability and nugatory-ness.

Court orders

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  1. 1.Stay of execution of the orders of the Superior Court made on 10th February 2006 pending the hearing and determination of the intended appeal (prayer 2, unopposed)
  2. 2.The applicant allowed to remove its property from the suit premises upon payment of the total rent due as at the date of leaving the premises
  3. 3.Costs to abide the appeal

Authorities

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Legislation

  • Court of Appeal RulesRule 5(2)(b)
  • Civil Procedure ActSection 3
  • Civil Procedure ActSection 3A
  • Civil Procedure RulesOrder XXXIX rules 1 and 2

Cases cited (3)

  • GITHUNGURI V. JIMBA CREDIT CORPORATION LTD (No.2)
    [1988] KLR 838

    Twin principles for stay/injunction pending appeal under rule 5(2)(b)

  • J.K. INDUSTRIES LTD V. KENYA COMMERCIAL BANK LTD
    (1982-88) 1 KAR 1688

    Twin principles for stay/injunction pending appeal under rule 5(2)(b)

  • RELIANCE BANK LIMITED (IN LIQUIDATION) V. NORLAKE INVESTMENTS LIMITED
    Civil Application No. 98 of 2002 (unreported)

    Twin principles considered against facts and circumstances of each case

On appeal from
High Court of Kenya at Nairobi
H.C.C.C. No. 1434 of 2005
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules and Sections 3 and 3A of the Civil Procedure Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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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, "Panafrican News Agency v Teleposta Pension Scheme & Others", Case Analysis (2006). Civil Application No. 47 of 2006. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2006/254/eng@2006-05-05

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