Peter O. Ngoge T/A O. P. Ngoge & Associates Advocates v Coffee Board of Kenya & another [2014] KECA 114 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Arguability of the intended appeal
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.
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.
Nugatory value and mootness of the relief sought
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.
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).
Legal principles established
#- 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
#- 1.The application under Rule 5(2)(b) fails and is dismissed
- 2.Costs of the application awarded to the respondents
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.