Alice Kemunto Ondieki & another v Peter Njuguna Gachie [2014] KECA 312 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the intended appeal is arguable
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.
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.
Whether the intended appeal would be rendered nugatory if the orders were not granted
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.
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.
Classification of the application as a Rule 5(2)(b) application notwithstanding the Rules invoked
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.
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).
Legal principles established
#- 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
#- 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.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.Costs of the application to abide the outcome of the intended appeal
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.