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Court of AppealDismissedCivil Application No. 290 of 2006· [2007] KECA 379 (KLR)

WINFRED MUTUMI WAMBUA & ANOTHER v ABEDNEGO NYAMAI ARON MAKAU [2007] KECA 379 (KLR)

Court of Appeal of Kenya
30 March 2007
Philip Kiptoo TunoiP.K. TunoiEOE.O. O'KubasuEGE.M. Githinji
2,052 words in judgment
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The bottom line

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The Court of Appeal refused to freeze a Machakos hotel during an appeal because any lost income could be repaid in money later.

What this practically means

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Executive summary

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This was an application by notice of motion under rule 5(2)(b) of the Court of Appeal Rules seeking an interlocutory injunction restraining the respondent from managing, alienating or interfering with T-Tot Hotel, Machakos pending an intended appeal. The intended appeal challenged a ruling of Kubo J of 27 September 2006 in HCCC No. 1395 of 2004, in which the High Court dismissed the applicants' chamber summons for an interlocutory injunction, holding that the affidavit evidence balanced out and required cross-examination, and directed the parties to take a date for the hearing of the main suit. The applicants argued that the ruling had been delivered prematurely before they closed their submissions, denying them a fair hearing, and that the respondent, as joint administrator of the estate of Aron Wambua Makau, had breached fiduciary duties and diverted hotel proceeds. The Court of Appeal restated the settled twin test for rule 5(2)(b) relief: the applicant must show an arguable appeal and that, if successful, it would be rendered nugatory absent the relief. Declining the injunction, the Court observed that the land on which the hotel stands belonged to the respondent and only the business was in dispute; any income the respondent earned pending appeal would be assessable, and granting the orders would create chaos on the ground. The application was dismissed with costs in the intended appeal. The decision below was not disturbed, as the application was not an appeal against it.

Key legal issues

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01

The twin test for relief under rule 5(2)(b) of the Court of Appeal Rules

Holding

The applicants failed to satisfy the Court that the intended appeal would be rendered nugatory if the injunction was not granted; the application failed on the second limb.

Reasoning

The Court applied the settled rule that an applicant must show an arguable appeal and that the appeal, if successful, would be rendered nugatory. Since the dispute concerned a hotel business whose income could be assessed, any loss during the pendency of the appeal would be quantifiable, and granting the injunction would create chaos on the ground. The nugatory limb was therefore not satisfied.

p. 3
02

Whether the learned judge's decision to rule before hearing closing submissions rendered the intended appeal arguable and its success nugatory

Holding

Even if the ruling was delivered prematurely, that complaint went to an arguable appeal but not to nugatory value; damages could compensate the applicants.

Reasoning

The applicants argued the ruling was delivered prematurely, denying them a fair hearing. The Court noted the judge, mindful of the Giella principles, directed parties to proceed to the hearing of the main suit. The Court held that should the applicants succeed, the average income of the hotel for the period the respondent operated it could be assessed, so no nugatory prejudice arose.

p. 4

Legal principles established

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  • An applicant under rule 5(2)(b) must demonstrate both that the intended appeal is arguable and that, if successful, it would be rendered nugatory unless a stay or injunction is granted.
  • In dealing with rule 5(2)(b) applications the Court of Appeal exercises original jurisdiction and does not sit in appeal over the trial judge's discretion.

Court orders

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  1. 1.The application for an interlocutory injunction pending the intended appeal is dismissed
  2. 2.Costs of the application shall be in the intended appeal

Authorities

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Legislation

  • Court of Appeal Rulesrule 5(2)(b)
  • Civil Procedure RulesOrder XXXIX rules 1 and 2

Cases cited (4)

  • Ruben & 9 Others v. Nderito & Another
    [1989] KLR 459
  • Stanley Munga Githunguri vs. Jimba Credit Corporation Ltd
    Civil Application NAI. 161 of 1988
  • Bob Morgan Systems Ltd & Another v. Jones
    (2004) 1 KLR 194
  • Giella v. Cassman Brown & Co. Ltd
    [1973] E.A. 358
On appeal from
High Court of Kenya, Nairobi
H.C.C.C. No. 1395 of 2004
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, "WINFRED MUTUMI WAMBUA & ANOTHER v ABEDNEGO NYAMAI ARON MAKAU [2007] KECA 379 (KLR)", Case Analysis (2007). Civil Application No. 290 of 2006. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2007/379/eng@2007-03-30

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