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Court of AppealDismissedCivil Application No. 106 of 2007· [2007] KECA 250 (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
1,504 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to pause a land judgment because any loss could be compensated with money and lis pendens protected the property.

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 (O'Kubasu, Waki and Deverell JJ.A) on a Notice of Motion dated 15 May 2007 by Benja Properties Limited seeking stay of execution of the judgment and decree of the High Court (Visram J) of 27 February 2007 in H.C.C.C. No. 73 of 2000, pending appeal in Civil Appeal No. 79 of 2007. The underlying dispute concerned land on Kirinyaga Road, Nairobi (LR. No. 209/136/239), where the first three respondents held titles to plots assigned in 1992; in 1995 the Commissioner of Lands issued allotment letters for a non-existent plot (No. 209/12999) overlapping the respondents' plots, which was transferred to the applicant, who obtained a title in 1997. The High Court cancelled the applicant's grant, restrained interference with the respondents' plots, dismissed the applicant's third-party claim for failure to serve statutory notice, and awarded costs. Applying rule 5(2)(b) of the Court of Appeal Rules, the Court required the applicant to show an arguable appeal and that its success would be rendered nugatory absent a stay. Arguability was conceded by respondents' counsel. On the nugatory limb, the Court found no basis for the applicant's fear that the land would be alienated by the respondents, who swore they were resident Kenyans with no intention of alienating it; the property's value was ascertainable and any loss would be compensable in damages, and the doctrine of lis pendens under section 52 of the Transfer of Property Act further protected the property. The application was accordingly dismissed with costs to the respondents. The decision below was not disturbed; the substantive appeal remained pending.

Key legal issues

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01

Whether the appeal was arguable under rule 5(2)(b)

Holding

Counsel for all respondents conceded the appeal raised arguable points, so this limb was satisfied without detailed analysis.

Reasoning

The two limbs of the rule 5(2)(b) test are arguability and nugatory effect. Respondents' counsel conceded the appeal raised arguable points and was not frivolous, so the Court did not need to examine the applicant's submissions on arguability in detail and moved directly to the nugatory-branch of the test.

p. 2
02

Whether the appeal would be rendered nugatory if stay was refused

Holding

No. The Court found no basis for the fear of alienation of the disputed land and held any loss would be compensable in damages; Lis pendens under section 52 of the Transfer of Property Act also protected the property during litigation.

Reasoning

The respondents swore they were Kenyan residents with no intention of alienating the land. The property was commercial, valued and occupied by rent-paying artisans, so any loss was quantifiable in damages. Section 52 of the Transfer of Property Act (lis pendens) barred transfers affecting the parties' rights except under authority of the Court. The nugatory limb therefore failed.

p. 3

Legal principles established

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  • On a rule 5(2)(b) application for stay, an applicant need only show the appeal is arguable and that its success would be rendered nugatory; the applicant need not show the appeal will definitely succeed.
  • It is sufficient on a rule 5(2)(b) application that reasonable argument can be put forward in support of the appeal.

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, Nairobi
H.C.C.C. No. 73 of 2000
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules

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, "Benja Properties Limited v H.h. Dr. Syedna Mohamed Burhannuddin Saheb & 2 others", Case Analysis (2007). Civil Application No. 106 of 2007. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2007/250/eng@2007-07-20

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