Duncan Nduracha v Fuad M. Mohammed & 2 others
The bottom line
#Kenya's Court of Appeal found the appeal arguable but refused a stay, instead ordering monthly rent payments while the occupier stays put pending the appeal.
What this practically means
#Executive summary
#Key legal issues
#Arguability of the intended appeal
The intended appeal is arguable because the High Court judge appears to have discussed matters with some parties without clear evidence as to whether the other parties were present, and in respect of the presence of necessary and interested parties.
Confining itself to the matters, submissions, record and judgment before the superior court, the Court found the intended appeal not frivolous. The apparent ex parte discussion in chambers and the alleged failure to ensure all necessary parties were before the judge were, on the face of it, arguable points. Only one arguable point is required, and such a point need not ultimately succeed; it need only require ventilation.
Whether refusal of the orders sought would render the appeal nugatory, and the appropriate balancing order
Although all three prayers failed, the Court crafted a balancing order requiring the first respondent to pay monthly mesne profits into a joint interest-earning account as a condition of continuing occupation pending appeal.
The stay and injunction prayers were overtaken by events since the High Court orders had been executed and the first respondent was in occupation; a mandatory injunction evicting him was exceptional relief not warranted here. Nonetheless, doing a balancing act, the applicant, currently out of the premises, would lose considerable mesne profits if no order contained the situation; hence the conditional monthly payment of Ksh.60,000/-.
Legal principles established
#- On a rule 5(2)(b) application the applicant must demonstrate that the intended or filed appeal is arguable (not frivolous) and that, were it to succeed, its success would be rendered nugatory by refusal of the application
- An arguable point need not be a point that will succeed; a single arguable point suffices and it is a point requiring ventilation before the court
- In deciding a rule 5(2)(b) application the court exercises unfettered discretionary powers which cannot be exercised capriciously or on the whims of the court
Court orders
#- 1.The first respondent to pay Ksh.60,000/- per month as mesne profits into an interest earning account in a reputable bank in the names of the firms of both advocates for the parties, with effect from 1st June 2011
- 2.Subject to that payment, the first respondent to continue in occupation of the suit premises till the intended appeal is heard and determined
- 3.Costs of the application to be in the intended appeal
- On appeal from
- High Court of Kenya at Mombasa
- H.C. MISC. APP. 1 OF 2011
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules (application for stay of execution and injunctive relief pending an intended appeal); Order 53(1) of the Civil Procedure Rules underpins the proceedings below
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Duncan Nduracha v Fuad M. Mohammed & 2 others", Case Analysis (2011). Civil Application No. NAI. 24 of 2011 (UR. 17/2011). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2011/254/eng@2011-05-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.