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Court of AppealDismissedCivil Application Nai 106 of 2007· [2007] KECA 82 (KLR)

Benja Properties Limited v H.h. Dr. Syedna Mohamed Burhannuddin Saheb & 2 others

Court of Appeal of Kenya
20 July 2007
EOE. O. O'KubasuPWP. N. WakiWDW. S. Deverell
1,505 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to halt a High Court land judgment because any harm could be compensated with money damages.

What this practically means

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Executive summary

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This Court of Appeal ruling at Nairobi (O'Kubasu, Waki and Deverell JJA) determined a Notice of Motion dated 15th May 2007 by Benja Properties Limited seeking stay of execution of the judgment and decree of Visram J delivered on 27th February 2007 in H.C.C.C. No. 73 of 2000, pending an appeal filed as Civil Appeal No. 79 of 2007. The underlying dispute concerned LR. No. 209/136/239 on Kirinyaga Road, Nairobi, where the High Court had cancelled the applicant's grant for LR. No. 209/12999 (allotted over plots owned by the first three respondents), enjoined the applicant from interfering with the respondents' plots, dismissed the applicant's third-party claim against the Attorney General and Commissioner of Lands for want of statutory notice, and awarded costs to the plaintiffs. Under rule 5(2)(b) the applicant had to show an arguable appeal and that refusal of stay would render its success nugatory. Arguability was conceded by all respondents' counsel. On the nugatory limb, the court found fears of alienation unfounded: the respondents were resident Kenyans with no intention of alienating the land, the commercial property was occupied by rent-paying Jua Kali artisans, its value was ascertainable, damages would be an adequate remedy, and lis pendens under section 52 of the Transfer of Property Act protected the property. The application was dismissed with costs to the respondents on 20th July 2007.

Key legal issues

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01

The arguability test under rule 5(2)(b)

Holding

The test was conceded - counsel for all respondents admitted the appeal raised arguable points, so the court did not dwell on it

Reasoning

The court recited the settled principle from Retreat Villas Ltd v Equatorial Commercial Bank Ltd that an applicant need only show serious questions of law or that reasonable argument can be put forward, citing Githunguri v Jimba Credit and J.K. Industries. Counsel for the respondents conceded arguability, so the court moved directly to the nugatory-ness limb.

p. 2
02

Whether the appeal would be rendered nugatory if stay is refused

Holding

No - fears of alienation were unfounded and any loss was compensable in damages, especially given lis pendens under section 52 of the Transfer of Property Act

Reasoning

The respondents swore they were resident Kenyans with no intention of alienating the land. The property was commercial, occupied by rent-paying Jua Kali artisans, its value ascertainable, and the parties, including the Government, able to compensate in damages. Section 52 of the Transfer of Property Act (lis pendens) further protected the property from alienation prejudicial to any party pending suit.

p. 3

Legal principles established

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  • On a rule 5(2)(b) stay application, the applicant need only show a reasonable argument in support of the appeal, not that it will definitely succeed, and must additionally show the appeal would be rendered nugatory if stay is refused.

Court orders

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  1. 1.The application for stay of execution is dismissed
  2. 2.Costs of the application awarded to the respondents
On appeal from
High Court of Kenya at Nairobi
H.C.C.C. No. 73 of 2000
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules (application for stay of execution pending appeal)

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, "Benja Properties Limited v H.h. Dr. Syedna Mohamed Burhannuddin Saheb & 2 others", Case Analysis (2007). Civil Application Nai 106 of 2007. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2007/82/eng@2007-07-20

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