Towhida Awo Shariff & 2 others v Abdulkadir Shariff Abdirahim & 2 others [2013] KECA 123 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#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
No - such a conflict is a substantive point of law for appeal, not a self-evident error correctable on review
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 Whether a document was registered under the repealed Registration of Titles Act is a pertinent point of law requiring serious argument; one judge may have misinterpreted the law, but that is a ground for appeal,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.
Whether the applicants satisfied the twin tests for an injunction pending appeal under Rule 5(2)(b)
Neither arguability nor nugatory aspect was established; the application failed on both limbs
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.
Legal principles established
#- 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
#- 1.The notice of motion dated 15th March 2013 seeking an injunction pending appeal is dismissed
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.