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Court of AppealDismissedCivil Application No. NAI.308 of 2013· [2014] KECA 263 (KLR)

Macharia Kagio v Habiba Ahmed Mohammed [2014] KECA 263 (KLR)

Court of Appeal of Kenya
14 November 2014
1,942 words in judgment
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The bottom line

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The Court of Appeal dismissed a Nairobi landowner's bid for an injunction pending appeal, ruling he failed the twin legal tests and hid key facts from the court.

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 (Waki, Nambuye and G.B.M. Kariuki, JJA) on a Notice of Motion dated 13th November 2013 by Macharia Kagio seeking injunctions restraining Habiba Ahmed Mohammed from possessing, occupying or interfering with L.R. No.36/1/871, Eastleigh, Nairobi, pending the hearing of Nairobi Civil Appeal No.235 of 2013 against a ruling of Mutungi J of 21st August 2013. The application was precipitated by the imminent eviction of the applicant and his daughter from the premises. The court held that under rule 5(2)(b) an applicant must satisfy the twin principles that the appeal is arguable and would be rendered nugatory if relief were refused, and must also exhibit full candour. The court found the property registered in the 1st respondent's name following a sale, that the applicant's attempt to rescind had failed, and that the injunction sought would prevent acts already completed - an attempt to close the stable door after the horse had bolted. Neither twin principle was satisfied, since even if the appeal succeeded the land would remain and the appeal would not be rendered nugatory. Independently, the applicant failed to disclose an eviction order issued in a related suit involving his daughter and concealed the history of the litigation; such non-disclosure disentitles a litigant from discretionary relief. The application was dismissed with costs to the 1st and 2nd respondents.

Key legal issues

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01

Whether the twin principles for an injunction pending appeal were satisfied

Holding

The application failed on both limbs: the appeal was not shown to be arguable, and even if it succeeded it would not be rendered nugatory because the land remains in existence

Reasoning

The court observed that the property is registered in the name of the 1st respondent following a sale for monetary consideration, and the applicant's attempt to rescind the sale failed. The injunction sought would prevent acts that had already occurred. The applicant therefore failed to establish justiciability of his claim, much less the arguability of the appeal, and nugatory-ness was impossible since the land would remain even if he later won.

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02

Whether the applicant's lack of full candour disentitled him from discretionary relief

Holding

Yes. The applicant failed to disclose the eviction order issued in suit No.576 of 2009 against his daughter and the history of related litigation, and this non-disclosure independently disentitled him from the discretionary relief sought

Reasoning

The replying affidavit disclosed an eviction order in a separate suit involving the applicant's daughter, of which the application made no mention. The court found the applicant had a duty of candour in discretionary applications: to place all germane facts before the court and not conceal relevant facts bearing on the twin principles. Concealment or a distorted picture disentitles a litigant from discretionary reliefs, quite apart from failure on the twin principles themselves.

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Legal principles established

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  • An applicant for stay of execution, injunction or stay of proceedings pending appeal must satisfy the twin principles that the appeal is arguable and that it will be rendered nugatory if the relief is not granted, and must also exhibit full candour
  • A litigant who conceals germane facts or knowingly paints a distorted picture of the matter in court disentitles himself from discretionary reliefs
  • A party cannot claim legal rights over registered land in the absence of proof of registration as legal owner or a court order to that effect

Court orders

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  1. 1.The application dated 13th November 2013 is dismissed
  2. 2.The applicant shall pay the costs of the 1st and 2nd respondents in the application

Authorities

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Legislation

  • Appellate Jurisdiction ActSection 3A
  • Appellate Jurisdiction ActSection 3B
  • Court of Appeal RulesRule 5
  • Court of Appeal RulesRule 47
  • Court of Appeal RulesRule 53
On appeal from
High Court of Kenya at Nairobi
H.C. ELC. Case No. 489 of 2013
Jurisdiction invoked
Sections 3A and 3B of the Appellate Jurisdiction Act, Cap 9, and Rules 5, 47 and 53 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, "Macharia Kagio v Habiba Ahmed Mohammed [2014] KECA 263 (KLR)", Case Analysis (2014). Civil Application No. NAI.308 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/263/eng@2014-11-14

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