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Court of AppealDismissedCivil Application No. 9 of 2010· [2010] KECA 329 (KLR)

Alice Kerubo Nyambati v Ochoki Mogaka & another [2010] KECA 329 (KLR)

Court of Appeal
23 April 2010
1,004 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal dismissed an injunction bid, confirming you must prove both an arguable appeal and that refusal would ruin it.

What this practically means

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Executive summary

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This was a rule 5(2)(b) application seeking a temporary injunction to restrain the respondents from selling or disposing of Kisii Municipality/Block 111/141 pending an intended appeal against the order of Muchelule, J of 25th January 2010, by which the High Court at Kisii vacated ex-parte interim injunction orders earlier granted by Musinga, J on 7th December 2009. The applicant, facing execution of a Kitale decree, argued the superior court acted without jurisdiction in vacating the orders and that the intended appeal would be rendered nugatory. The respondents maintained the appeal was neither arguable nor rendered nugatory, noting execution was on a valid decree against which no appeal lay. The Court of Appeal restated the settled twin principles for rule 5(2)(b) applications, as set out in Ishmael Kagunyi Thande v Housing Finance of Kenya Ltd: an applicant must show the appeal is arguable and that it would be rendered nugatory absent the orders. It held the learned judge had discretion to extend or vacate an ex-parte interim order, execution being under a valid decree of the same court against which no appeal had been preferred, and declined to comment on whether that discretion was properly exercised. Expressing skepticism about the arguability of the intended appeal, the court found it not arguable and, without reaching the nugatory limb, dismissed the motion dated 28th January 2010 with costs to the respondents.

Key legal issues

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01

The principles governing applications under rule 5(2)(b) of the Court of Appeal Rules

Holding

The twin principles are settled: the applicant must show the appeal is arguable and that it will be rendered nugatory absent the orders; failure on the first limb disposes of the application.

Reasoning

The court adopted its own earlier statement in Ishmael Kagunyi Thande v Housing Finance of Kenya Ltd, reiterating that rule 5(2)(b) jurisdiction is original and discretionary and guided by the two well-settled principles. Finding the intended appeal not arguable, the court expressly declined to consider the nugatory limb, as satisfaction of both limbs is required.

p. 2
02

Whether the High Court judge had jurisdiction to vacate the ex-parte interim orders

Holding

The judge had discretion to extend or vacate an interim order made ex parte, particularly where execution was sought under a valid decree against which no appeal had been preferred.

Reasoning

The court observed that execution was in respect of a valid decree of the same court with no appeal preferred against it, and that Muchelule, J clearly had discretion to extend or vacate the ex-parte order. It declined to comment on whether that discretion was correctly exercised, treating that as a matter for the intended appeal, while expressing skepticism about its arguability.

p. 2

Legal principles established

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  • An applicant under rule 5(2)(b) must satisfy both that the appeal or intended appeal is arguable and that its success will be rendered nugatory unless the injunction or stay is granted.

Court orders

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  1. 1.Dismissal of the motion dated 28th January, 2010
  2. 2.Costs of the application to the respondents

Authorities

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Legislation

  • Court of Appeal RulesRule 5(2)(b)
  • Civil Procedure ActSection 3A

Cases cited (3)

  • Ishmael Kagunyi Thande vs Housing Finance of Kenya Ltd
    Civil Application No. Nai. 157 of 2006 (unreported)
  • Githunguri vs Jimba Credit Corporation Ltd, No 2
    (1988) KLR 838
  • J. K. Industries Ltd vs Kenya Commercial Bank Ltd
    (1982-88)
On appeal from
High Court of Kenya at Kisii
H.C.C.C. No. 263 of 2009
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, "Alice Kerubo Nyambati v Ochoki Mogaka & another [2010] KECA 329 (KLR)", Case Analysis (2010). Civil Application No. 9 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2010/329/eng@2010-04-23

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