Westlands Triangle Properties Ltd v Westlands Sundries Ltd & 2 others [2010] KECA 146 (KLR)
The bottom line
#Kenya's Court of Appeal refused to pause eviction orders against a landlord who had evicted tenants unlawfully, ruling you cannot profit from breaking court orders.
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 is arguable, i.e. whether at least one arguable point has been demonstrated
- 2.Whether the High Court had jurisdiction to grant the mandatory and temporary injunctions, given the earlier ruling of Ang'awa J. and the provisions of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act
- 3.Whether an injunction could be issued at interlocutory stage otherwise than under Order 39 of the Civil Procedure Rules
- 4.Whether the success of the intended appeal would be rendered nugatory absent a stay
Key legal issues
#Whether the first condition for stay under rule 5(2)(b) - an arguable appeal - was satisfied
The court was not satisfied that the intended appeal was arguable. The applicant's arguments on jurisdiction (conflicting rulings by judges of equal jurisdiction, the tribunal's finding of no landlord-tenant relationship) did not persuade the court, which noted the possibility of an uncontrolled tenancy reverting the matter to the High Court.
The court held the dispute was whether the respondents were protected tenants under the Landlord and Tenant Act. The tribunal's ruling that the premises fell outside its jurisdiction did not preclude an uncontrolled tenancy relationship, in which case the matter would revert to the High Court. The applicant had not terminated the respondents' existing tenancy with Rosemary Wanja Njau, and instead of reactivating its pending suit, it evicted the respondents unlawfully. The court declined to determine whether the mandatory injunction was proper, reserving that for the appeal bench.
Whether a party who creates a situation by unlawful self-help can obtain the court's assistance
The applicant, having evicted the respondents in breach of an order staying eviction pending tribunal proceedings, could not blame third parties' occupation or seek stay; it created its own predicament.
Relying on Kamau Mucuha v The Ripples Ltd, the court held a party must not retain an advantage obtained through a planned and blatantly unlawful act. The applicant was stopped by an order of the court from evicting the respondents pending tribunal proceedings; instead of returning to the High Court to pursue its pending suit for possession, it evicted the respondents. If anyone was to blame for the resulting situation, the applicant should blame itself.
Possible doubt over the Court of Appeal's own jurisdiction to entertain the application
The court observed that, reading sections 5(1) and 15 of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act together, it was doubtful whether the Court of Appeal had jurisdiction to entertain the application.
The court noted the respondents had been in possession for over 29 years each as sub-tenants, and that the applicant issued no notice terminating their existing tenancy with the head lessee who had surrendered her lease. In view of sections 5(1) and 15 of the Act, jurisdictional doubt arose. However, the court ultimately disposed of the application on the failure of the first arguability condition, without expressly determining its own jurisdiction.
Legal principles established
#- An applicant under rule 5(2)(b) must demonstrate both that the appeal or intended appeal is arguable and that its success will be rendered nugatory if stay is not granted; failure to establish either ground is fatal.
- It is enough for an applicant under rule 5(2)(b) to show at least one arguable point in the appeal or intended appeal.
- A party ought not, as far as possible, be allowed to retain a position of advantage obtained through a planned and blatantly unlawful act, such as evicting tenants otherwise than through the process of the court.
Court orders
#- 1.Dismissal of the applicant's motion dated 10th March 2009 seeking stay of the orders of Sitati J. of 28th November 2008 and 10th December 2008
- 2.Costs of the application to the respondents
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. 112 of 2008
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules (stay pending intended appeal)
Relief refused
#Stay of execution of the High Court orders (mandatory injunction to reinstate the respondents and temporary injunction restraining alienation) pending the intended appeal
The applicant failed to establish the first condition - that the intended appeal is arguable; having failed one condition, it was unnecessary to consider the nugatory aspect
Costs
Costs of the motion dated 10th March 2009 awarded to the respondents.
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.
It is enough if an applicant is able to show at least one arguable point in its appeal or intended appeal.
The applicant is under a duty to establish both grounds. A failure to establish one, as here is sufficient to disentitle an applicant to orders under rule 5(2) (b); aforesaid.
a party, ought not, as far as possible, be allowed to retain a position of advantage that he has obtained through a planned and blatantly unlawful act.
In the result we dismiss the applicant's motion dated 10th March 2009, with costs to the respondents.
Issues in the judgment
#The case name of the cited authority is printed with a typographical repetition: 'The Rippples Ltd.' (three p's), differing from the conventional spelling 'The Ripples Ltd.'
The judgment refers to the condition as 'the first condition' yet the background passage lists arguability first and the nugatory ground 'secondly, and in addition'; the court's reasoning is internally consistent but the dual framing may confuse.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Kahiro Kimani v Fatuma Abdalla [2016] KECA 547 (KLR)[2016] KECA 547 (KLR)27 May 2016
Cite this brief
#Cite this brief
Caselaw, "Westlands Triangle Properties Ltd v Westlands Sundries Ltd & 2 others [2010] KECA 146 (KLR)", Case Analysis (2010). Civil Application No. 64 of 2009. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2010/146/eng@2010-07-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.