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Court of AppealAllowedCivil Application No. 48 of 2014 (UR 35/2014)· [2014] KECA 457 (KLR)

Ramco Investment Limited v Uni-Drive Theatre Limited [2014] KECA 457 (KLR)

Court of Appeal of Kenya
9 July 2014
1,723 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Court of Appeal confirmed it can grant a temporary injunction to preserve property while an appeal is pending, even after the original case was dismissed.

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, Ouko and Gatembu Kairu, JJ.A) on Ramco Investment Limited's application under rule 5(2)(b) of the Court of Appeal Rules for an injunction pending the lodging, hearing and determination of an intended appeal against the judgment of P. Nyamweya, J. delivered on 30 January 2014 in Nairobi High Court ELC 106 of 2009, which dismissed the applicant's originating summons claiming a portion of approximately 0.1249 hectares by adverse possession. The High Court had found the applicant not in exclusive control (Kenya Power had erected poles and a transformer on the disputed portion), in occupation by consent, and therefore not in adverse possession. The Court restated the rule 5(2)(b) conditions - a notice of appeal lodged within 14 days, an arguable appeal, and nugatory-ness if relief is refused - requiring both arguability and the nugatory aspect to be satisfied. Significantly, it held that unlike Western College v Oranga, this Court has express jurisdiction to grant temporary injunctions under rule 5(2)(b) even where the High Court suit has been dismissed, describing the exercise as original jurisdiction, and that the traditional Giella v Cassman Brown principles do not govern such applications. It also held that an applicant under rule 5(2)(b) need not offer security, unlike order 42 rule 6(2) applications in the High Court. Finding arguable grounds on exclusivity of possession and dispossession, and holding the appeal might be rendered nugatory without preservation of the status quo, the Court allowed the application, restrained the respondent from taking possession or interfering with the applicant's quiet possession pending the intended appeal, conditioned on filing the appeal within 45 days, directed priority allocation, and ordered costs in the intended appeal.

Key legal issues

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01

Conditions for relief under rule 5(2)(b)

Holding

The three well-established conditions are a notice of appeal lodged within 14 days under rule 75, an arguable appeal, and that the appeal be rendered nugatory if the order is not granted; both the arguability and nugatory limbs must be satisfied.

Reasoning

The Court restated its long line of authority: a single bona fide arguable ground suffices; an arguable appeal need not be one that must succeed, only one that is not frivolous; the Court must not make definitive findings of fact or law at this stage; and the nugatory inquiry asks whether what is to be stayed is reversible or compensable in damages.

p. 2
02

Jurisdiction to grant a temporary injunction under rule 5(2)(b) where the High Court suit has been dismissed

Holding

The Court has express jurisdiction, under both repealed and present rules, to issue a temporary injunction alongside stay orders, even for a party whose suit has been dismissed, and describes this exercise as original jurisdiction.

Reasoning

Distinguishing Western College v Oranga, where the predecessor Court held it had no power to issue a temporary injunction, this Court held that its express powers extend to temporary injunctive orders. Such an injunction does not follow the traditional Giella v Cassman Brown considerations, though it remains an invocation of the Court's equitable jurisdiction.

p. 3
03

Requirement of security

Holding

Security is not a requirement for a rule 5(2)(b) application; the criteria for stay in the High Court under order 42 rule 6(2) and in this Court are different, though the Court may in a proper case require the respondent to give security.

Reasoning

The respondent's averment that the applicant deposit funds in a joint interest-earning account would be appropriate in a High Court application under order 42 rule 6(2), but the criteria differ between the two jurisdictions. Substantial loss is what has to be prevented in both jurisdictions.

p. 3
04

Application of the principles to the facts

Holding

The applicant raised arguable points - whether the respondent maintained presence through Kenya Power, whether it was dispossessed or the applicant was a mere licensee, and whether possession was exclusive - and the appeal would be rendered nugatory without an injunction preserving the status quo.

Reasoning

The respondent holds the title documents while the applicant is in occupation; given the risk of sale and the respondent's conduct including tenants vacating, the Court held that failure to grant the order might render the intended appeal nugatory if it succeeded, and allowed the application with a 45-day filing condition.

p. 3

Legal principles established

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  • A rule 5(2)(b) application requires a duly lodged notice of appeal, an arguable appeal, and that the appeal be rendered nugatory if stay is not granted; both arguability and nugatory aspects must be satisfied.
  • A single bona fide arguable ground suffices; an arguable appeal is one that is not frivolous, and the Court must not make definitive or final findings of fact or law at that stage.
  • Under rule 5(2)(b), the Court has express jurisdiction to grant a temporary injunction alongside orders of stay, including to a party whose suit has been dismissed by the High Court; such an application is an exercise of original jurisdiction and is not governed by the Giella v Cassman Brown principles.
  • Unlike a stay application in the High Court under order 42 rule 6(2) of the Civil Procedure Rules, a rule 5(2)(b) applicant in the Court of Appeal is not required to offer security, though the Court may in a proper case require security.

Court orders

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  1. 1.Pending the lodgment, hearing and determination of the intended appeal, the respondent is restrained by an order of injunction from taking possession or interfering with the applicant's quiet possession of the suit property
  2. 2.The applicant to file and serve the intended appeal within forty-five (45) days from the date of the order, failing which the temporary injunction shall stand vacated without further orders
  3. 3.Upon filing of the intended appeal, the President of the Court to allocate a hearing date on a priority basis
  4. 4.Costs of the application to be in the intended appeal

Authorities

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Legislation

  • Court of Appeal Rulesrule 5(2)(b)
  • Court of Appeal Rulesrule 75
  • Court of Appeal Rules (repealed)rule 5(2)
  • Civil Procedure Rulesorder 42 rule 6(2)

Cases cited (7)

  • Butt V. Rent Restriction Tribunal
    [1982] KLR 417
  • J.K. Industries Ltd, Kenya Commercial Bank Ltd & Another
    [1987] KLR 506
  • Stanley Kang'ethe V. Tony Ketter
    Civil Application No. 31 of 2012
  • Giella V. Cassman Brown
    EA [1973] 358
  • Western College of Arts and Applied Sciences V. Oranga & Others
    [1976] KLR 63
  • Oraro & Rachier Advocates V. Cooperative Bank of Kenya
    [1999] 1 EA 236
  • Mukuma V. Abuga
    [1988] KLR 645
On appeal from
High Court of Kenya at Nairobi
Nairobi High Court ELC 106 of 2009
Jurisdiction invoked
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, "Ramco Investment Limited v Uni-Drive Theatre Limited [2014] KECA 457 (KLR)", Case Analysis (2014). Civil Application No. 48 of 2014 (UR 35/2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/457/eng@2014-07-09

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