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Court of AppealDismissedCivil Application No. 80 of 2009 (UR 49/2009)· [2009] KECA 283 (KLR)

Amos Kinuthia v Planfarm Investment Company Limited & another [2009] KECA 283 (KLR)

Court of Appeal of Kenya
12 June 2009
EOE. O. O'KubasuPWP. N. WakiAVAlnashir Visram
2,067 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to halt a land sale and execution because the applicant's appeal was weak and money damages could fully compensate him.

What this practically means

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Executive summary

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This is a single-judgment ruling of the Court of Appeal at Nairobi (O'Kubasu, Waki and Visram, JJA) dismissing an application under rule 5(2)(b) of the Court of Appeal Rules by Amos Kinuthia seeking an injunction restraining dealings with L.R. No. 209/5135, South C, Nairobi, and a stay of execution and of further proceedings, pending an intended appeal against the ruling of Kimaru, J. delivered on 5 March 2009 in H.C.C. Suit No. 610 of 2008, in which the High Court dismissed his interlocutory injunction application. The High Court had found the applicant had no proprietary right remaining after the charged property was sold by public auction to the 2nd respondent following his default, and that his only remedy was damages. The application was related to Civil Application No. NAI.79 of 2009 and counsel largely adopted their submissions in that application. Applying the well-established twin principles - arguability of the intended appeal and whether it would be rendered nugatory - the Court expressed serious doubt about arguability given the unchallenged default and auction, and held that even if arguable the appeal would not be rendered nugatory because the disputed property was capable of valuation and the applicant had himself pleaded general damages, making damages an adequate remedy. The Court further treated the stay of proceedings prayer as abandoned, since only the 2nd respondent addressed it, and found no reason to stay the superior court proceedings. The notice of motion was dismissed with costs.

Key legal issues

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01

Twin principles for rule 5(2)(b) applications

Holding

The applicant must show the intended appeal is arguable and that it would be rendered nugatory absent the orders sought; failing either limb the application fails.

Reasoning

The Court reaffirmed the long line of authorities from Githunguri v Jimba Credit Corporation (No. 2) to Bob Morgan Systems Ltd v Jones. On the facts, the undisputed default and auction sale cast doubt on arguability, and the secured property could be valued so damages were an adequate remedy, defeating the nugatory limb.

p. 4
02

Nugatory test and adequacy of damages

Holding

Where the dispute concerns charged land capable of valuation and the applicant pleaded general damages, the appeal is not rendered nugatory if the stay is refused.

Reasoning

The Court noted the applicant himself sought general damages in the plaint, demonstrating the claim was monetary in nature. A property offered as security can easily be valued, so compensation by way of damages is an adequate remedy that preserves the applicant's position even if the appeal later succeeds.

p. 4
03

Abandonment of stay of proceedings prayer

Holding

A relief not supported by submissions may be treated as abandoned; the Court declined to stay the superior court proceedings.

Reasoning

Only the 2nd respondent addressed the stay of proceedings prayer; the applicant's and 1st respondent's counsel confined themselves to stay of execution. Consistent with its ruling in the related Civil Application No. 79 of 2009, the Court found no reason to stay further proceedings before the High Court.

p. 4

Legal principles established

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  • An applicant under rule 5(2)(b) must satisfy the twin tests of an arguable appeal and nugatory disposition

Court orders

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  1. 1.The notice of motion dated 24th March 2009 is dismissed with costs

Authorities

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Legislation

  • Court of Appeal RulesRule 5(2)(b)
  • Civil Procedure RulesOrder XI Rule 1
  • Civil Procedure RulesOrder XXXIX Rules 1, 2, 2A and 3
  • Civil Procedure ActSections 3 and 63(e)
  • Transfer of Property ActSections 53 and 60

Cases cited (2)

  • GITHUNGURI V. JIMBA CREDIT CORPORATION (No. 2)
    [1988] KLR 838
  • BOB MORGAN SYSTEMS LTD. & ANOTHER V. JONES
    [2004] 1 KAR 194
On appeal from
High Court of Kenya at Milimani Commercial Courts
H.C.C. Suit No. 610 of 2008
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, "Amos Kinuthia v Planfarm Investment Company Limited & another [2009] KECA 283 (KLR)", Case Analysis (2009). Civil Application No. 80 of 2009 (UR 49/2009). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2009/283/eng@2009-06-12

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