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Court of AppealAllowedCivil Application 31 of 2012· [2013] KECA 378 (KLR)

Kinyanjui v Ketter & 5 others (Civil Application 31 of 2013) [2013] KECA 378 (KLR)

Court of Appeal of Kenya
22 February 2013
WKW. KaranjaWilliam OukoW. OukoPKP. O. Kiage
2,042 words in judgment
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The bottom line

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Kenya's Court of Appeal froze a Kshs 53 million property dispute, confirming that courts can protect buyers pending appeal if the appeal is arguable and would otherwise be wasted.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Nairobi (W. Karanja, W. Ouko and P. O. Kiage, JJ.A) on a notice of motion dated 16th January 2012 brought under Rules 1(2) and 5(2)(b) of the Court of Appeal Rules by Stanley Kangethe Kinyanjui. He sought an injunction restraining the 1st to 3rd respondents from dealing with L.R. No. 7741/149 Kitsuru, Nairobi, and a stay of proceedings in Eldoret H.C.C.C. No. 140 of 1999, pending an intended appeal against a ruling of J. R. Karanja, J. delivered on 9th December 2011. The High Court had set aside the applicant's purchase of the suit property at a public auction in execution of a decree, rectified the register by removing him as proprietor, and found the 2nd respondent held a beneficial interest in the property. The Court of Appeal restated the principles governing Rule 5(2)(b) applications, drawn from a line of authorities including Ruben v Nderitu, Halai v Thornton & Turpin and Damji Pragji Mandavia: the jurisdiction is original and discretionary; both the arguability of the appeal and the nugatory-ness test must be satisfied; a single bona fide arguable ground suffices; and no definitive findings of fact or law should be made. Holding that several grounds were arguable, and that the applicant - who had paid Kshs. 53 million and was in possession, with the 1st respondent's impecunity unrebutted - would lose both his money and the property if unrestrained, the court allowed the application, granted the injunction and stay, and ordered costs in the appeal. The decision below was not disturbed at this interlocutory stage.

Key legal issues

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01

Whether the intended appeal is arguable

Holding

The grounds raised - including that the applicant was not a party to the suit, the 2nd respondent's locus standi, the alleged non-existent stay order, and the contradictory findings - raise arguable points.

Reasoning

Although only one bona fide arguable ground is required, the applicant advanced several grounds touching on jurisdiction of the judge below, the 2nd respondent's locus standi, the existence and service of a stay order, internal contradictions in the ruling, and the effect of a caveat and prohibitory order. The court held these raise arguable points without making definitive findings, consistent with the Rule 5(2)(b) principles.

p. 4
02

Whether the appeal would be rendered nugatory without interim relief

Holding

Yes. The applicant, who paid Kshs. 53 million and is in possession, stood to lose the money and be dispossessed, with the impecunity of the 1st respondent and unknown whereabouts of others unrebutted.

Reasoning

The sale and transfer having been set aside, unrebutted affidavit evidence showed the applicant had paid Kshs. 53 million towards the property and was in possession; the 1st respondent was impecunious and had sought bankruptcy, and the whereabouts of the 2nd and 3rd respondents were unknown. If unrestrained, the substratum of the intended appeal would disappear, rendering the appeal nugatory.

p. 4

Legal principles established

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  • On a Rule 5(2)(b) application the Court exercises original and discretionary jurisdiction; it is not an appeal from the trial judge's discretion.
  • The applicant must satisfy both twin principles: an arguable appeal and that the appeal will be rendered nugatory without interim relief.
  • A single bona fide arguable ground of appeal suffices to establish arguability.
  • An arguable appeal need not be one that must succeed, only one that is not frivolous and deserves full argument.
  • The court must not make definitive or final findings of fact or law on a Rule 5(2)(b) application.
  • 'Nugatory' bears its full meaning - worthless, futile, invalid and also trifling.
  • An appeal is rendered nugatory if what is sought to be stayed is irreversible or not compensable in damages.
  • Where nugatory-ness is alleged on account of a respondent's impecunity, the onus shifts to that respondent to rebut the claim by evidence.
  • The court becomes seized of a Rule 5(2)(b) application only after a notice of appeal has been filed under Rule 75.

Court orders

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  1. 1.Injunction restraining the 1st, 2nd and 3rd respondents from advertising, auctioning, offering for sale, leasing, mortgaging, charging, transferring, assigning, entering upon, trespassing on, taking possession of and/or otherwise dealing with property L.R. No. 7741/149 Kitsuru, Nairobi pending the lodging, hearing and determination of the intended appeal
  2. 2.Stay of proceedings in High Court Civil Suit No. 140 of 1999 pending the lodging, hearing and determination of the intended appeal
  3. 3.Costs of and incidental to the application to abide the result of the appeal (costs in the appeal)

Authorities

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Legislation

  • Court of Appeal RulesRule 1(2)
  • Court of Appeal RulesRule 5(2)(b)
  • Court of Appeal RulesRule 75
  • Civil Procedure RulesOrder 21 Rule 54
  • Auctioneers Act

Cases cited (7)

  • Ruben & 9 Others v Nderitu & Another
    (1989) KLR 459
  • Halai & Another v Thornton & Turpin (1963) Ltd.
    (1990) KLR 365
  • David Morton Silverstein v Atsango Chesoni
    Civil Application No. Nai 189 of 2001
  • Damji Pragji Mandavia v Sara Lee Household & Body Care (K) Ltd
    Civil Application No. Nai 345 of 2004
  • Joseph Gitahi Gachau & Another v. Pioneer Holdings (A) Ltd. & 2 others
    Civil Application No. 124 of 2008
  • Reliance Bank Ltd v Norlake Investments Ltd
    [2002] 1 EA 227
  • International Laboratory for Research on Animal Diseases v Kinyua
    [1990] KLR 403
On appeal from
High Court of Kenya at Eldoret
H.C.C.C. No. 140 of 1999
Jurisdiction invoked
Rules 1(2) and 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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Later judgments citing this (25)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Kinyanjui v Ketter & 5 others (Civil Application 31 of 2013) [2013] KECA 378 (KLR)", Case Analysis (2013). Civil Application 31 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2013/378/eng@2013-02-22

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