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Court of AppealDismissedCivil Application No. Nai 47 of 2011· [2014] KECA 114 (KLR)

Peter O. Ngoge T/A O. P. Ngoge & Associates Advocates v Coffee Board of Kenya & another [2014] KECA 114 (KLR)

Court of Appeal
3 October 2014
1,752 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to halt rent collection against a Nairobi advocate because his intended appeal had no arguable points and the relief sought had become pointless.

What this practically means

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Executive summary

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This is a single-judgment ruling of the Court of Appeal at Nairobi (Gatembu Kairu, M'inoti and J. Mohammed JJA) delivered on 3rd October 2014 on a Notice of Motion dated 2nd March 2011 brought under Rules 1 and 5(2)(b) of the Court's Rules. The applicant, an advocate trading as O. P. Ngoge & Associates, sought a stay of execution of, and stay of proceedings before, the High Court ruling of Mwera J of 24th February 2011 which had dismissed his application for a temporary injunction restraining the Coffee Board of Kenya and Crystal Valuers Ltd from levying distress for rent or interfering with his occupation of premises on LR No. 209/6545 Nairobi. He also sought injunctions to maintain the status quo pending his intended appeal. The Board had levied distress for rent following alleged default under a letter of offer dated 11th March 2005 which offered the premises to the applicant jointly with one George Ouma Nyakan. Applying the settled twin principles for Rule 5(2)(b) applications - arguability and nugatory value - the court held the intended appeal was not arguable: the letter of offer was addressed to and accepted by both the applicant and Nyakan in respect of the same undifferentiated office space, so their rental obligations were not severable, undermining the applicant's claim that the Board should have pursued Nyakan alone. The court further noted the applicant's concession that the application had been overtaken by events and was academic. The application was dismissed with costs to the respondents. No decision of the High Court was disturbed at this interlocutory stage.

Key legal issues

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01

Arguability of the intended appeal

Holding

The intended appeal was not arguable; the premises were offered to the applicant and George Ouma Nyakan jointly and their obligations under the letter of offer were not severable, so the applicant's claim that only Nyakan should be pursued had no merit.

Reasoning

The court examined the letter of offer dated 11th March 2005 addressed to and signed by both the applicant and Nyakan for the same office space without any distinction of who occupied what portion. It therefore rejected the applicant's contention that the first respondent should have pursued Nyakan alone for rent, and found no arguable point in the complaint that the lease was drawn by an unqualified person. Having failed the arguability limb, the application could not succeed even if nugatory consideration were reached.

p. 3
02

Nugatory value and mootness of the relief sought

Holding

The question of granting the relief did not arise because the applicant conceded that the application had been overtaken by events and was academic, and he sought the orders only for academic purposes.

Reasoning

Although the court proceeded to consider the nugatory limb hypothetically, the applicant himself acknowledged at the hearing that the orders sought would serve no useful purpose, having been overtaken by events. Relief designed to preserve the subject matter of an appeal cannot serve its purpose where the situation it addresses no longer obtains, so no basis existed for the discretionary intervention sought under Rule 5(2)(b).

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Legal principles established

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  • An applicant under Rule 5(2)(b) must demonstrate that the appeal or intended appeal is arguable and that, unless the relief is granted, the appeal will be rendered nugatory.
  • The jurisdiction under Rule 5(2)(b) is original and discretionary, aimed at preservation of the subject matter of the appeal to ensure its just and effective determination.

Court orders

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  1. 1.The application under Rule 5(2)(b) fails and is dismissed
  2. 2.Costs of the application awarded to the respondents

Authorities

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Legislation

  • Rules of the Court (Court of Appeal Rules)Rules 1 and 5(2)(b)
  • Civil Procedure RulesOrder 39
  • Advocates Actsection 34

Cases cited (2)

  • Equity Bank Limited vs. West Link Mbo Limited
    Civil Application No Nai 78 of 2011 (Ur. 53/2011)
  • Ishmael Kagunyi Thande V HFCK
    Civil Application Nai No. 157 of 2006
On appeal from
High Court of Kenya, Central Law Courts Nairobi
High Court Civil Suit No. 599 of 2010
Jurisdiction invoked
Rule 5(2)(b) of the Rules of this Court (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, "Peter O. Ngoge T/A O. P. Ngoge & Associates Advocates v Coffee Board of Kenya & another [2014] KECA 114 (KLR)", Case Analysis (2014). Civil Application No. Nai 47 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/114/eng@2014-10-03

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