Kuwinda Rurinja Co. Ltd v Kuwinda Holdings Ltd. & 13 others [2010] KECA 13 (KLR)
The bottom line
#Kenya's Court of Appeal refused to stop land dealings pending appeal because the applicant waited over ten years, but preserved the status quo and fast-tracked the appeal.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the intended appeal (Civil Appeal No. 8 of 2003) is arguable
- 2.Whether, unless the injunction sought is granted, the appeal, if successful, would be rendered nugatory
Key legal issues
#Whether the intended appeal was arguable
Yes - the 62-ground memorandum of appeal raised some arguable points; one arguable point suffices under Rule 5(2)(b)
The court considered the memorandum of appeal challenging the High Court ruling that the advocate had apparent authority to record the consent order and that fraud must be sued upon by fresh suit. It concluded the intended appeal was not frivolous, emphasising that arguability requires only a single arguable point, not certainty of success.
Whether the appeal would be rendered nugatory absent an injunction
No - the respondents' assurance that they had no intention of selling, the applicant's over-ten-year delay, and the fact that sub-division was effected pursuant to a court order meant the nugatory limb failed
The court weighed the applicant's fear that the land would be disposed of or charged against the respondents' stated assurance of non-interference. It noted the applicant's indolence over more than ten years since the 1997 ruling and that the sub-division had been carried out in accordance with the superior court's order, so no nugatory prejudice was demonstrated.
Effect of inordinate delay on a Rule 5(2)(b) application and the overriding objective
The delay of over ten years justified describing the applicant as indolent; in furtherance of the overriding objective, the main appeal should be expedited rather than the injunction granted
The court observed the ruling challenged dated from 5th December 1997 while the application was filed on 2nd August 2010. Guided by section 3A of the Appellate Jurisdiction Act, it preferred listing the main appeal for hearing and final determination to bring the long litigation to an end, refusing the injunction but preserving the status quo meanwhile.
Legal principles established
#- To succeed on a Rule 5(2)(b) application, an applicant must demonstrate both that the appeal or intended appeal is arguable and that, if successful, it will be rendered nugatory unless the order sought is granted
- Even one arguable point suffices to satisfy the arguability limb of Rule 5(2)(b); a chain of arguable points is not required
- An arguable appeal does not mean an appeal that will certainly succeed; it is enough that the appeal is not frivolous
- The jurisdiction of the Court of Appeal under Rule 5(2)(b) is original and discretionary, and the court exercises its mind de novo without it being an appeal from the trial judge's discretion
Court orders
#- 1.Application for injunction refused
- 2.Status quo prevailing as at 10th December 2010 to be maintained until final determination of the appeal
- 3.Costs of the application to abide the outcome of the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- H.C.C.C. No. 5261 of 1988
- Jurisdiction invoked
- Sections 3A and 3B of the Appellate Jurisdiction Act (Cap. 9) and Rule 5(2)(b) of the Court of Appeal Rules
Relief refused
#Order of injunction restraining the 1st and 2nd respondents from alienating, transferring, sharing, sub-dividing or otherwise dealing with L.R No. 10262/2 and L.R No. 11694 pending hearing and determination of Civil Appeal No. 8 of 2003
The appeal is arguable but the nugatory limb failed: the respondents gave an assurance that there was no intention of selling the suit property, the applicant had been indolent for over ten years, and the sub-division was carried out in accordance with the order of the superior court
Order of injunction restraining the 1st and 2nd respondents from further developing, putting up structures or otherwise dealing with the suit properties
Same failure of the nugatory limb; the court instead ordered maintenance of the status quo pending final determination of the appeal
Costs
The costs of this application shall abide the outcome of the appeal
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
As for this application the order that commends itself to us is that the application for injunction is refused but we order that the status quo prevailing today (10th December, 2010) be maintained until the final determination of the appeal. The costs of this application shall abide the outcome of the appeal.
The Court will grant a stay or injunction, as the case may be if satisfied, firstly, that the applicant has demonstrated that his appeal or intended appeal is arguable; and secondly, that unless a stay or injunction is granted his appeal or intended appeal if successful, will be rendered nugatory.
There may or may not be other arguable points but as we have said before even one arguable point is sufficient for the proposal of rule 5(2)(b); there need not be a chain of arguable points to sustain an application.
We have carefully considered the filed Memorandum of Appeal together with the submission by Mr. Ng'ang'a and have come to the conclusion that the intended appeal raises some arguable points.
Issues in the judgment
#The cause number under which the appeal to the Court of Appeal is described is inconsistent with the record: the application is brought pending Civil Appeal No. 8 of 2003, but the memorandum of appeal is dated 27th January 2003 while the ruling appealed from was delivered on 5th December 1997, and the High Court case is styled both H.C.C.C. No. 5261 of 1998 in the header and HCCC No. 5261 of 1988 in the judge's extracted ruling
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kuwinda Rurinja Co. Ltd v Kuwinda Holdings Ltd. & 13 others [2010] KECA 13 (KLR)", Case Analysis (2010). Civil Application No. NAI. 190 of 2010 (UR 136/2010). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2010/13/eng@2010-12-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.