Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealDismissedCivil Application No. NAI 103 of 2013 (UR 69/2013)· [2013] KECA 447 (KLR)

Haithar Haji Abdi & another v Southdowns Developers Limited [2013] KECA 447 (KLR)

Court of Appeal
26 July 2013
RNR. N. NambuyeKMK. M'InotiJMJ. Mohammed
1,665 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

#

Kenya's Court of Appeal refused to pause eviction and a KSh 6.3 million damages order because the applicants showed neither an arguable appeal nor real risk of loss.

What this practically means

#

Executive summary

#
This is a ruling of the Court of Appeal at Nairobi (Nambuye, M'Inoti and J. Mohammed, JJ.A) on a Notice of Motion dated 14th May 2013 brought under Rule 5(2)(b) of the Court of Appeal Rules seeking stay of execution of the judgment of Mutungi, J of 29th April 2013 in HCCC No. 1389 of 2004, pending an intended appeal. The High Court had ordered the applicants' eviction from LR No. 13154, Langata, issued a permanent injunction against them, and awarded the respondent KShs.6,300,000 as general damages for trespass. The background was a mortgagee's sale of the property to the respondent in 1991, specific performance ordered in 2003, and registration of the respondent as proprietor in July 2004. The applicants argued their appeal was arguable and would be rendered nugatory if evicted and unable to recover damages. The court applied the twin Rule 5(2)(b) test: arguability and nugatory value. It found no arguable appeal, holding that ownership had been conclusively settled by the unvaried 2003 specific performance decree; the jurisdictional ground was never raised below; and no basis was shown for challenging the damages computation. On nugatory value, the applicants were not in physical occupation, and the respondent had undertaken to repay any monies if the appeal succeeded; mere payment of money does not ordinarily render an appeal nugatory. The application was dismissed with costs to the respondent. This ruling binds subordinate courts and the High Court on the twin Rule 5(2)(b) test as applied by the Court of Appeal.

Key legal issues

#
01

Arguability of the intended appeal

Holding

The intended appeal was not arguable; ownership had been conclusively settled by the 2003 specific performance decree, and the grounds raised were unmeritorious.

Reasoning

The court held that the decree pursuant to which the respondent was registered as proprietor had never been set aside or varied, so ownership was conclusively settled by a competent court. It was not open to Mutungi, J to determine ownership differently because the applicants' defence had been struck out and the suit proceeded by formal proof. The jurisdictional ground was never raised below and was unexplained, and no basis was shown for challenging the damages award.

p. 3
02

Nugatory value of the intended appeal

Holding

The appeal would not be rendered nugatory because the applicants were not in physical occupation and the respondent undertook to repay any monies ordered.

Reasoning

The respondent's unchallenged deposition showed the applicants were not physically in occupation but had let the property to a tenant, so eviction from a home did not arise. The respondent also deponed that it was able to repay any monies in the event of a successful appeal, and the applicants made no effort to show the respondent had no assets, offering only a bare assertion.

p. 3

Legal principles established

#
  • An applicant under Rule 5(2)(b) must satisfy the court both that there is an arguable appeal that is not frivolous and that refusal of stay would render the appeal nugatory.
  • Refusal of a stay of execution will not ordinarily render an appeal nugatory where the issue is the payment of money.

Court orders

#
  1. 1.The Notice of Motion dated 14th May, 2013 is dismissed
  2. 2.Costs of the application to the respondent

Authorities

#

Legislation

  • Court of Appeal RulesRule 5(2)(b)
  • Registration of Titles Act, Cap 281, Laws of Kenya (now repealed)

Cases cited (3)

  • Ahmed v Savings and Loan Kenya Ltd & Another
    (2000) LLR 4145
  • East African Power Management Ltd v The Owners of the Vessel "Victoria Eight"
    Nairobi Civil Application No. NAI 245 of 2009
  • Kenya Shell Ltd v Kibiru & Another
    (1986) KLR 410
On appeal from
High Court of Kenya at Nairobi
HCCC No. 1389 of 2004
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Haithar Haji Abdi & another v Southdowns Developers Limited [2013] KECA 447 (KLR)", Case Analysis (2013). Civil Application No. NAI 103 of 2013 (UR 69/2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2013/447/eng@2013-07-26

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