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Court of AppealDismissedCivil Application No. Nai 83 of 2014 (UR 68/2014)· [2014] KECA 110 (KLR)

Christopher Mwendiah Owando v Kenya Industrial Estates Ltd & 1 other

Court of Appeal of Kenya
3 October 2014
1,721 words in judgment
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The bottom line

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The Court of Appeal refused to halt the consequences of a completed property sale, confirming Kenyan courts will not grant relief once an event has already happened.

What this practically means

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Executive summary

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The applicant charged his property, Kajiado/Kisaju/2664, to Kenya Industrial Estates Ltd in 2004 to secure Kshs. 500,000 and interest. After alleged default, the chargee exercised its statutory power of sale and sold the property by public auction to the 2nd respondent, George Maina, who was thereafter registered as proprietor. The applicant sued in the ELC seeking declarations that the sale was fraudulent and injunctive relief, and simultaneously sought a temporary injunction under Order 40 of the Civil Procedure Rules. On 4 April 2014 Gacheru J dismissed the injunction application, holding that the applicant had no prima facie case, that damages would compensate him, that the 2nd respondent's title was protected under sections 98(4) of the Land Act and 26 of the Land Registration Act, and that the event to be injuncted had already occurred. The applicant filed notice of appeal and applied to the Court of Appeal under Rule 5(2)(b) for stay pending Civil Appeal No. 86 of 2014. Applying the twin Kagunyi Thande test, the Court (Kiage, Gatembu Kairu and J. Mohammed, JJ.A) found the intended appeal not arguable on the material, since the applicant had conceded the charge and default and the statutory pre-requisites to sale were shown to have been met. It further held that the object of the discretion - preservation of the subject matter - was unattainable because the transfer to the 2nd respondent had already been completed, aided by the applicant's delay while overseas for medical treatment. The application was dismissed with costs to the respondents. The judgment is a single ruling of the full bench and binds subordinate courts on the Rule 5(2)(b) twin requirements.

Key legal issues

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01

Whether the intended appeal was arguable

Holding

It was not arguable on the material before the Court

Reasoning

The applicant had accepted charging the property and defaulting; material showed the chargee fulfilled the statutory and regulatory prerequisites before exercising its statutory power of sale. In those circumstances the Court was not satisfied, applying the approach of the High Court, that the intended appeal was arguable, and that alone justified dismissal.

p. 3
02

Whether the appeal would be rendered nugatory absent stay

Holding

The preservation-of-subject-matter object of Rule 5(2)(b) could not be attained because the property had already been transferred to the 2nd respondent

Reasoning

The applicant's delay in moving the High Court, partly attributed to being overseas for medical treatment, allowed circumstances on the ground to change substantially through transfer of the property. Since the transfer was already complete, no order could preserve the subject matter, so the nugatory-ness limb failed.

p. 4

Legal principles established

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  • To succeed on a Rule 5(2)(b) application, an applicant must satisfy the twin tests that the appeal or intended appeal is arguable and that, unless stay or injunction is granted, the success of the appeal will be rendered nugatory
  • The object of the Court's Rule 5(2)(b) discretion is the preservation of the subject matter of the appeal to ensure just and effective determination of appeals
  • No injunction or stay will issue in respect of an event that has already occurred; where the property has been transferred, the discretionary object cannot be attained

Court orders

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  1. 1.The application for stay under Rule 5(2)(b) is dismissed
  2. 2.Costs of the application awarded to the respondents
On appeal from
High Court of Kenya at Nairobi
ELC Civil Suit No. 442 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, "Christopher Mwendiah Owando v Kenya Industrial Estates Ltd & 1 other", Case Analysis (2014). Civil Application No. Nai 83 of 2014 (UR 68/2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/110/eng@2014-10-03

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