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Court of AppealAllowedCivil Application No. NAI 72 of 2014 (UR 58/2014)· [2014] KECA 91 (KLR)

Trustees of the Kenya Assemblies of God v Suresh Kumar Sofat & 2 others [2014] KECA 91 (KLR)

Court of Appeal
19 September 2014
2,074 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal paused a High Court order requiring a church to vacate disputed Nairobi land until its appeal is heard.

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 (Nambuye, G.B.M. Kariuki and Gatembu Kairu, JJ.A) on a rule 5(2)(b) application by the Trustees of the Kenya Assemblies of God seeking stay of a High Court ruling of 3rd March 2014, as amended on 19th March 2014, by P.N. Nyamweya, J in ELC. No. 402 of 2013. The High Court had granted the Sofats a permanent injunction restraining the Church from trespassing on, transferring, constructing on or interfering with their possession of L.R. 209/11281 Nairobi, and ordered the Church to yield vacant possession within 60 days, holding that the Sofats had a prima facie case on their title and that special circumstances justified a mandatory injunction. The Church, which claimed allocation of the property in 1988 and occupation since 1996 raising a limitation defence, argued its intended appeal was arguable and would be rendered nugatory if the orders took effect. Applying the settled twin principles under rule 5(2)(b) - an arguable appeal and nugatory-ness - the court found the intended appeal arguable, noting that an arguable appeal need not necessarily succeed, and held that the balance tilted in favour of preserving the status quo pending appeal. The court allowed the application, stayed the High Court ruling pending the intended appeal, gave the applicant 60 days to file the record of appeal failing which the stay would automatically stand discharged, and ordered that costs of the application abide the outcome of the appeal.

Key legal issues

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01

Whether the intended appeal is arguable

Holding

The intended appeal was arguable, since the applicant raised grievances including failure to interrogate the acquisition of title, disposal of a contested matter without a full hearing, and non-consideration of the period of possession.

Reasoning

The court applied the settled principle that an arguable appeal need not be one that will necessarily succeed. It found the applicant's grievances - the legality of the respondents' title, the summary disposal of a contested matter without a full hearing, and the length of the applicant's possession - sufficient to render the appeal non-frivolous and therefore arguable.

p. 4
02

Whether the appeal would be rendered nugatory unless stay is granted

Holding

The balance tilted in favour of maintaining the status quo pending the hearing and determination of the intended appeal, warranting the stay.

Reasoning

Relying on the principle that rule 5(2)(b) emphasises the centrality of loss to parties on both sides and the need to preserve the status quo, the court reasoned that the applicant's long possession and the difficulty of restoring possession if the property were disposed of justified preserving the status quo pending appeal, since any loss might render the appeal nugatory.

p. 4

Legal principles established

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  • An applicant under rule 5(2)(b) must satisfy the twin test: an arguable appeal and that the appeal will be rendered nugatory unless stay or injunction is granted.
  • An arguable appeal is not one that must necessarily succeed; it suffices that the appeal is not frivolous.

Court orders

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  1. 1.The applicant's application dated 7th April 2014 allowed in terms of prayer 3
  2. 2.The ruling of the High Court delivered on 3rd March 2014 as subsequently amended stayed pending the hearing and determination of the intended appeal
  3. 3.The applicant has Sixty (60) days from the date of delivery of the ruling to file and serve the record of appeal failing which the orders of stay shall stand automatically discharged
  4. 4.Costs of the application to abide the outcome of the appeal

Authorities

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Legislation

  • Civil Procedure RulesOrder 40
  • Rules of the Court of Appealrule 5(2)(b)

Cases cited (5)

  • Kenya Breweries Ltd and Another v Washington Okeyo
    [2002] 1 EA 109
  • Total Kenya Limited vs. Kenya Revenue Authority
    Civil Application 135 of 2012
  • Musa Kipkorir Arap Baringila v Mansoor Nandla
    Civil Application No. 254 of 2005
  • Equity Bank Limited v West Link Mbo Limited
    Civil Application No. Nai 78 of 2011
  • Ishmael Kagunyi Thande v HFCK
    Civil Application No. Nai 157 of 2006
On appeal from
High Court at Nairobi
ELC. No. 402 of 2013
Jurisdiction invoked
Rule 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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Cite this brief

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Cite this brief

Caselaw, "Trustees of the Kenya Assemblies of God v Suresh Kumar Sofat & 2 others [2014] KECA 91 (KLR)", Case Analysis (2014). Civil Application No. NAI 72 of 2014 (UR 58/2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/91/eng@2014-09-19

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