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Court of AppealDismissedCivil Application No. 16 of 2014· [2014] KECA 268 (KLR)

New Ocean Transport Limited & another v Anwar Mohamed Bayusuf Limited [2014] KECA 268 (KLR)

Court of Appeal
16 October 2014
HOH. M. OkwenguASAsike-MakhandiaFSF. Sichale
3,919 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed it can order premises restored to a tenant, but refused here because the tenants were evicted lawfully after their stay expired.

What this practically means

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Executive summary

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The applicants, former tenants holding over after the expiry of their lease, were evicted from Plot No.194/VI/MN pursuant to an eviction order issued by Mukunya, J. in ELC No.53 of 2014. Their appeal against that ruling was pending, and a 14-day temporary stay from the High Court had expired on 20th June 2014; the respondent executed the eviction on 21st June 2014, a day before the applicants' stay application was due to be heard in the Court of Appeal. The applicants moved the Court of Appeal by Notice of motion dated 26th June 2014 seeking a restorative injunction reinstating them into the premises, plus return of their goods and trucks, pending hearing of their stay application and intended appeal. Two issues fell for determination: whether the Court had jurisdiction to grant a restorative injunction, and whether the application qualified. The court held that rule 5(2)(b) of the Court of Appeal Rules confers jurisdiction to grant any injunction, positive or negative, including restorative injunctions, rejecting a narrow construction. However, it held that an injunction under that rule must be anchored on an appeal or intended appeal and cannot issue pending the hearing of a stay application. On the facts, the applicants had been evicted through legal process after the temporary stay lapsed; the letter from their counsel did not constitute a stay; the draft order had been prepared by the applicants themselves; and extracting the order and warrants during the currency of the stay without executing them was not improper. The application was dismissed with costs to the respondent. The decision affirms the Court's remedial jurisdiction while tightening the anchoring requirement for rule 5(2)(b) applications.

Key legal issues

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01

Whether the Court of Appeal has jurisdiction under rule 5(2)(b) to grant a restorative (positive/mandatory) injunction

Holding

Yes. The word 'injunction' in rule 5(2)(b) is not restricted to negative injunctions; the Court exercises original and independent jurisdiction and, under the overriding objective, may grant any interlocutory order necessary for the ends of justice, including a restorative injunction in a suitable case.

Reasoning

The court examined the classification of injunctions into positive and negative, placing restorative injunctions within the positive family as orders requiring a party to undo a wrongful act and restore the status quo ante. It rejected the respondent's narrow construction, noting that had the drafters intended to limit the rule to negative injunctions they would have said so expressly. Counsel for the respondent cited no authority for the restriction, and limiting the rule would contradict the Court's independent and original jurisdiction and the overriding objective.

p. 5
02

Whether the applicants qualified for the restorative injunction sought pending the hearing of their application for stay

Holding

No. Rule 5(2)(b) applications must be anchored on an appeal or intended appeal, and the arguability and nugatory-ness principles cannot apply to an injunction sought merely pending the hearing of an application for stay; furthermore the applicants were lawfully evicted after the temporary stay lapsed.

Reasoning

The court held that an injunction under rule 5(2)(b) is available only where an appeal or intended appeal is in place, so that the twin principles of arguability and nugatory-ness can be applied; a prayer pegged to the hearing of a stay application defeats those principles. On the merits, the applicants were evicted through a legal process after the 14-day stay expired, the notice letter did not amount to a stay, the draft order had been prepared by the applicants themselves and approved with amendments, and extracting the order and warrants during the currency of the stay, without executing them until it lapsed, was neither irregular nor improper.

p. 6

Legal principles established

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  • The Court of Appeal, under rule 5(2)(b) of its Rules, may grant any species of injunction known in law, including positive (mandatory/restorative) injunctions, and not only negative or prohibitory injunctions.
  • An injunction under rule 5(2)(b) must be anchored on an appeal or intended appeal; it cannot be granted pending the hearing of an application for stay of execution in the same court.
  • A letter from counsel notifying an opposing party of a filed application for stay of execution does not amount to a stay order and does not bind the party served; execution after expiry of a temporary stay is lawful.

Court orders

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  1. 1.Dismissal of the applicants' Notice of motion dated 26th June 2014 seeking a restorative injunction and reinstatement into the suit premises
  2. 2.Costs of the application awarded to the respondent

Authorities

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Legislation

  • Appellate Jurisdiction Actsection 3(2)
  • Court of Appeal Rulesrule 5(2)(b)
  • Court of Appeal Rulesrule 75
  • Landlord and Tenant (Shops, Hotels and Catering Establishments) Act
  • Civil Procedure RulesOrder 21

Cases cited (2)

  • Equity Bank Limited v West Link MBO Ltd
    (2013) eKLR
  • Dennis Mogambi Mang'are v Attorney General & Anor
    (2012) eKLR
On appeal from
High Court of Kenya at Mombasa
H.C.E.L.C.C. No. 53 of 2014
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules, read with section 3(2) of the Appellate Jurisdiction Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (19)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "New Ocean Transport Limited & another v Anwar Mohamed Bayusuf Limited [2014] KECA 268 (KLR)", Case Analysis (2014). Civil Application No. 16 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/268/eng@2014-10-16

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