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Court of AppealPartially AllowedCivil Application No. NAI. 116 of 2014· [2014] KECA 312 (KLR)

Alice Kemunto Ondieki & another v Peter Njuguna Gachie [2014] KECA 312 (KLR)

Court of Appeal of Kenya
17 October 2014
2,008 words in judgment
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The bottom line

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Kenya's Court of Appeal stopped a property demolition, ruling an appeal over land claimed as a road reserve was arguable and needed protection.

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 (Githinji, Maraga and Musinga, JJ.A.) on an application dated 23rd May 2014 by Alice Kemunto Ondieki and Kennedy Obwaya Onsongo seeking stay of execution, stay of proceedings and a temporary injunction pending an intended appeal against the ruling of Gitumbi, J. of 2nd May 2014 in ELC. No. 486 of 2011, which refused to set aside an ex parte judgment and decree entered against them on 12th July 2013 in favour of Peter Njuguna Gachie, the registered proprietor of Nairobi Block 62/259. The ex parte decree ordered a permanent injunction against the applicants and a mandatory injunction to demolish their structure. Although brought under Rules 41, 42 and 43, the Court treated the application as one under Rule 5(2)(b), requiring demonstration that the intended appeal is arguable and would be rendered nugatory. The Court found two arguable issues: whether the respondent's title was unlawfully procured over land alleged to have been a road reserve, and whether the trial court exercised its discretion judicially by refusing to set aside the ex parte judgment without considering the applicants' intended defence, applying Sarfarz Motors v Kisii Hardware. On nugatory-ness, the respondent conceded an intention to demolish the applicants' five-storey building, whose rents serviced a Kshs.30 million loan. The Court granted prayers 3 and 4 (stay of proceedings and temporary injunction over Nairobi Block 62/258), with costs of the application to abide the outcome of the intended appeal.

Key legal issues

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01

Whether the intended appeal is arguable

Holding

The Court found two arguable issues: the legality of the respondent's title over land alleged to have been a road reserve, and whether the trial court exercised its discretion judicially in refusing to set aside the ex parte judgment without considering the applicants' intended defence.

Reasoning

The applicants contended the respondent's title was unlawfully procured because the parcel was a road reserve providing access to their property, supported by a letter authored by the respondent himself and a letter from the National Housing Corporation describing the parcel as an open space. The Court also found weighty the contention that the trial court ignored the applicants' intended defence when refusing to set aside the default judgment.

p. 4
02

Whether the intended appeal would be rendered nugatory if the orders were not granted

Holding

The Court held that the appeal would be rendered nugatory because the respondent conceded an intention to demolish the applicants' building, in which they had invested substantially and which generated rents servicing a large bank loan.

Reasoning

The respondent conceded he intended to demolish the building or a substantial part of it. If demolition occurred before the intended appeal was heard, the appeal would be rendered nugatory. The applicants were servicing a huge loan from rents collected from tenants in the suit property, and the respondent would not suffer undue prejudice from a temporary injunction pending the appeal.

p. 4
03

Classification of the application as a Rule 5(2)(b) application notwithstanding the Rules invoked

Holding

Although the application was brought under Rules 41, 42 and 43, the Court treated it as a Rule 5(2)(b) application since the relief sought was stay pending appeal.

Reasoning

The Court observed that the application, though not shown to have been brought under Rule 5(2)(b), was in substance such an application, and Rule 41 explains the process the Court follows when exercising jurisdiction under Rule 5(2)(b).

p. 3

Legal principles established

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  • An application for stay under Rule 5(2)(b) requires the applicant to demonstrate that the appeal or intended appeal is arguable and that it will be rendered nugatory unless the orders sought are granted.
  • In an application to set aside an ex parte judgment, a court must consider not only the reason for failure to enter appearance or file defence but also the nature of the defence sought to be advanced.

Court orders

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  1. 1.Stay of proceedings granted, restraining the respondent from prosecuting the application for taxation of the bill of costs and any other proceedings in the superior court pending hearing and determination of the application and intended appeal (prayer 3)
  2. 2.Temporary injunction granted, restraining the respondent, his agents and assigns from alienating or interfering with the applicants' ownership, enjoyment and possession of Nairobi Block 62/258 pending hearing and determination of the intended appeal (prayer 4)
  3. 3.Costs of the application to abide the outcome of the intended appeal

Authorities

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Legislation

  • Court of Appeal RulesRule 5(2)(b)
  • Court of Appeal RulesRule 41
  • Court of Appeal RulesRule 42
  • Court of Appeal RulesRule 43
  • Civil Procedure RulesOrder 5 Rules 15 and 16

Cases cited (2)

  • GITHUNGURI v JIMBA CREDIT CORPORATION LTD
    [1988] KLR 838
  • SARFARZ MOTORS & ANOR v KISII HARDWARE
    Civil Appeal No. 98 of 1990
On appeal from
High Court of Kenya at Nairobi
ELC. No. 486 of 2011
Jurisdiction invoked
Rules 41, 42, 43 and 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, "Alice Kemunto Ondieki & another v Peter Njuguna Gachie [2014] KECA 312 (KLR)", Case Analysis (2014). Civil Application No. NAI. 116 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/312/eng@2014-10-17

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