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Court of AppealAllowedCivil Application No. 123 & 91 of 2010

John Gachie Gichimu & 20 others v Mukua Tutuma & another [2010] KECA 41 (KLR)

Court of Appeal
19 November 2010
PWP. N. WakiDAD. K. S. AganyanyaJNJ. G. Nyamu
1,059 words in judgment
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The bottom line

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Kenya's Court of Appeal blocked the eviction of 21 Huruma tenants, holding that conflicting eviction notices raised an arguable appeal worth protecting with an injunction.

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 on a notice of motion brought by 21 applicants under rules 5(2)(b) and 42 of the Court of Appeal Rules, seeking a temporary injunction restraining the respondents from evicting them from business and residential premises on L.R. No. 209/9692, Huruma Shopping Centre, Nairobi, pending the hearing and determination of their intended appeal against a ruling of the High Court (Mwera, J.) dated 17th May 2010 in H.C.C.C. No. 98 of 2010. The applicants, tenants of the 1st respondent, had received two conflicting vacations notices, and the High Court had declined their application for interim relief. Counsel for the applicants argued the dispute ought to have gone to the rent tribunals and that the notices were illegal; the respondents contended the tribunal was the proper forum. Applying the established two-limb test under rule 5(2)(b), the court held the validity of the conflicting notices was an arguable point, and that eviction before the appeal would render its result nugatory. The respondents' tribunal argument did not outweigh these considerations, and the joinder of the 2nd respondent was left for the appeal. The court allowed the application, issued a temporary injunction restraining the respondents jointly and severally from evicting the applicants pending the intended appeal, and ordered that costs of the application abide the outcome of the appeal. The decision below was not disturbed; this ruling preserves the status quo pending appeal.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the intended appeal is arguable
  2. 2.Whether the result of the intended appeal, if successful, would be rendered nugatory unless a temporary injunction is issued

Key legal issues

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01

Whether the validity of the two conflicting vacation notices raised an arguable point for the intended appeal

Holding

The court found that whether it was proper or legal to issue a second notice after the first, and the validity of both notices, were arguable points rendering the intended appeal not frivolous.

Reasoning

The applicants were first given notice to vacate on 15th April 2010, then a second notice requiring them to vacate by 28th February 2010. They read mischief in the conflicting notices. The court held that whether it was proper or legal to issue the second notice, and whether the notices were valid, was an arguable point, so the intended appeal was not frivolous.

p. 3
02

Whether refusal of the injunction would render the intended appeal nugatory

Holding

The court agreed the applicants had a genuine fear of eviction before the appeal was determined, which would render a successful appeal nugatory.

Reasoning

The applicants faced imminent eviction from business and residential premises. The court accepted their genuine fear that without an injunction they would be evicted before the intended appeal was determined, so that a successful appeal would have no practical effect. The respondents' tribunal-forum argument did not outweigh this.

p. 3
03

Whether the respondents' argument that rent tribunals were the proper forum defeated the application

Holding

The court held that the tribunal-jurisdiction argument did not weigh against the applicants' arguable-point and nugatory considerations.

Reasoning

The respondents argued that the 1st and 2nd applicants were covered by the business premises rent tribunal and should have gone to that forum. The court held this argument did not weigh against the applicants' showing on the two rule 5(2)(b) limbs, and left the joinder question of the 2nd respondent to the hearing of the intended appeal.

p. 3

Legal principles established

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  • An applicant under rule 5(2)(b) must satisfy two limbs: that the intended appeal is arguable and that, if refused and the appeal succeeds, its result would be rendered nugatory.

Court orders

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  1. 1.Temporary injunction issued restraining the respondents jointly and severally from evicting the applicants from their individual business and residential premises and houses on L.R. No. 209/9692 at Huruma Shopping Centre Nairobi pending the hearing and final determination of their intended appeal
  2. 2.Costs of the application to abide the outcome of the appeal

The bench

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One judgment of the whole court — no separate or dissenting opinions.

PW
majority

Wrote the judgment

DA
majority

Wrote the judgment

JN
majority

Wrote the judgment

On appeal from
High Court of Kenya at Nairobi
H.C.C.C. No. 98 of 2010
Jurisdiction invoked
Rules 5(2)(b) and 42 of the Court of Appeal Rules
Consolidated with
Civil Application No. 91 of 2010

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

We allow the application and issue a temporary injunction to restrain the respondents jointly and severally from evicting the applicants from their individual business and residential premises and houses on plot known as L.R. No. 209/9692 at Huruma Shopping Centre Nairobi pending the hearing and final determination of their intended appeal.
p. 3Final orders - temporary injunction pending appeal
For an application of this nature to be granted, the applicants need to demonstrate the requisite two limbs which need to be satisfied under rule 5(2)(b) of this Court’s Rules, firstly, that the intended appeal is arguable and secondly that if the application is refused and the appeal is eventually successful, its result would be rendered nugatory
p. 3Test for injunction pending appeal under rule 5(2)(b)
Costs of the application shall abide the outcome of the appeal.
p. 3Costs order

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "John Gachie Gichimu & 20 others v Mukua Tutuma & another [2010] KECA 41 (KLR)", Case Analysis (2010). Civil Application No. 123 & 91 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2010/41/eng@2010-11-19

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