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Court of AppealDismissedCivil Application No. NAI 61 of 2013 (UR 40/2013)· [2013] KECA 123 (KLR)

Towhida Awo Shariff & 2 others v Abdulkadir Shariff Abdirahim & 2 others [2013] KECA 123 (KLR)

Court of Appeal of Kenya
8 November 2013
1,874 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Court of Appeal refused to stop any dealing with a Nairobi property, ruling the estate administrators failed to show their appeal was arguable or would be ruined.

What this practically means

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Executive summary

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This is a Court of Appeal ruling at Nairobi (Karanja, Mwilu and Ouko, JJ.A.) on a notice of motion dated 15th March 2013 in which three applicants, administrators of the estate of Awo Shariff Mohamed (deceased), sought an injunction pending the hearing of an intended appeal against a ruling of Havelock, J delivered on 12th February 2013 in HCCC No. 329 of 2003. The High Court judge had dismissed an application for review of his earlier ruling of 21st November 2011, finding no sufficient grounds for review. The applicants' counsel argued on registration procedure under the repealed Registration of Titles Act, contending that a prohibition had been registered against the suit property and that the conflicting findings of two judges on whether the prohibition was registered constituted an error apparent on the face of the record. The Court held that such a conflict is a substantive point of law for the appeal, not a reviewable self-evident error, applying National Bank of Kenya Ltd v Ndungu Njau. Confining itself to the twin Rule 5(2)(b) tests, the court found neither arguability nor the nugatory aspect established, noting also the undisputed submission that the applicants were not owners of the property and that their decree-based claim could be executed against other property of the 1st respondent. The application was dismissed with costs to the 1st and 2nd respondents. This ruling binds no question of substantive registration law; the court expressly reserved those issues for the bench hearing the intended appeal.

Key legal issues

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01

Whether a divergence between two judges of concurrent jurisdiction on a point of law (one finding registration of a prohibitory order, the other finding none) amounts to an error apparent on the face of the record justifying review

Holding

No - such a conflict is a substantive point of law for appeal, not a self-evident error correctable on review

Reasoning

The court adopted the Ndungu Njau test that reviewable error must be self-evident and not require elaborate argument. Whether a document was registered under the repealed Registration of Titles Act is a pertinent point of law requiring serious argument; one judge may have misinterpreted the law, but that is a ground for appeal, not review. The Court of Appeal declined to determine which judge was correct, reserving that for the bench hearing the appeal.

p. 3
02

Whether the applicants satisfied the twin tests for an injunction pending appeal under Rule 5(2)(b)

Holding

Neither arguability nor nugatory aspect was established; the application failed on both limbs

Reasoning

The court was not persuaded the applicants had an arguable appeal. Even assuming arguability, the nugatory limb failed: the applicants' claim against the 1st respondent was based on a decree which could be executed against any other property he owned, and there was no evidence he had no other property to satisfy it. The court also noted the undisputed submission that the applicants were not owners of the property in question.

p. 3

Legal principles established

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  • A party seeking an injunction pending appeal under Rule 5(2)(b) must establish the twin principles of arguability of the appeal and that the appeal will be rendered nugatory if the orders are not granted.
  • Review lies only for an error or omission that is self-evident and requires no elaborate argument; that another judge could have taken a different view, or that the court misconstrued a statute or reached an erroneous conclusion of law, is not a ground for review.

Court orders

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  1. 1.The notice of motion dated 15th March 2013 seeking an injunction pending appeal is dismissed
  2. 2.Costs of the application awarded to the 1st and 2nd respondents
On appeal from
High Court of Kenya at Nairobi
HCCC No. 329 of 2003
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules (application for injunction pending hearing and determination of an intended appeal)

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, "Towhida Awo Shariff & 2 others v Abdulkadir Shariff Abdirahim & 2 others [2013] KECA 123 (KLR)", Case Analysis (2013). Civil Application No. NAI 61 of 2013 (UR 40/2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2013/123/eng@2013-11-08

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