Estauarine Estates Limited v Leo Investments Limited [2008] KECA 207 (KLR)
The bottom line
#Winning an appeal later isn't enough — the Court of Appeal dismissed Estuarine Estates' bid to remove a caveat because it failed to prove refusal would make success pointless.
What this practically means
#Executive summary
#Key legal issues
#The twin test for relief under Rule 5(2)(b)
An applicant must show an arguable appeal and that the appeal's success would be rendered nugatory if the stay or injunction is refused
The court accepted, for the applicant's benefit, that the intended appeal was arguable on the draft memorandum of appeal. However it reiterated that arguability alone is insufficient: the applicant must go further and prove that refusal of the order would render a successful appeal nugatory. On the facts, damages were an adequate remedy because the applicant showed no incompensatable harm and no impecuniosity on the respondent's part.
Whether removal of the caveat pending appeal was warranted
Refused; the applicant failed to demonstrate incompensatable damage or the respondent's inability to pay damages
The applicant argued that the caveat restrained its proprietary rights, but did not show that any ensuing damage would be incapable of compensation in damages, nor that the respondent was likely to become impecunious and unable to satisfy any damages decreed against it. In those circumstances the nugatory-ness limb of the Rule 5(2)(b) test failed and the application was dismissed.
Legal principles established
#- An arguable appeal alone does not entitle a party to stay or injunctive relief under Rule 5(2)(b); the applicant must additionally demonstrate that the appeal, if successful, would be rendered nugatory
- 'Arguable appeal' means one that is not frivolous, not one that must succeed
Court orders
#- 1.The Notice of Motion dated 22nd March, 2007 is dismissed
- 2.No order as to costs
- On appeal from
- High Court of Kenya at Nairobi
- H.C.C.C. No. 1162 of 2006
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules (application for stay or injunction pending an intended appeal)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Estauarine Estates Limited v Leo Investments Limited [2008] KECA 207 (KLR)", Case Analysis (2008). Civil Appli No. 59 of 2007 (UR 42/2007). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2008/207/eng@2008-06-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.