Pastuer Dukuzumuremyi v Anthony Milimu Lubulellah t/a Lubulellah & Associates Advocates [2014] KECA 563 (KLR)
The bottom line
#Kenya's Court of Appeal refused to protect a property the applicant had already sold, confirming you must satisfy both parts of the stay test.
What this practically means
#Executive summary
#Key legal issues
#The twin test for relief under Rule 5(2)(b)
An applicant must demonstrate both an arguable appeal and that it would be rendered nugatory if the orders are not granted; both limbs must be satisfied.
The court restated the established principles: the applicant must show an arguable appeal that is not frivolous, and that absence of the orders would render the appeal nugatory if successful. Citing Reliance Bank and Republic v KACC, the court held that satisfying one limb alone is insufficient; both are cumulative requirements.
Competence of the application given alleged non-compliance with Rules 75 and 77
Non-compliance with Rules 75 and 77 is not a valid objection in a Rule 5(2)(b) application because the rule does not require a valid notice of appeal; validity is determined under other express rules.
Following National Industrial Credit Bank Ltd v Aquinas Francis Wasike, the court held that a Rule 5(2)(b) application does not require the court to determine the validity of a notice of appeal, there being a notice of appeal on record and other rules under which validity may be determined or the notice struck out.
Whether the applicant had a protectable legal interest in the suit property
Having sold and transferred the suit property to the interested party on 3rd June 2011 (registered 14th September 2011), the applicant had no legal interest capable of protection, rendering the application for injunction and stay incompetent and mischievous.
The court noted the undisputed position that the property was registered in the name of the interested party, not the respondents, so the orders sought against the respondents would be issued in vain. The applicant, having voluntarily sold the property, could not seek orders against the interested party either; the confusion was of the applicant's own making.
Whether the appeal would be rendered nugatory
Even if arguable, the appeal would not be rendered nugatory: the 2nd respondent had deponed, unchallenged, that it had no intention of disposing of the property, and the applicant did not allege the 2nd respondent could not pay the property's value.
The burden of demonstrating nugatory impact lay on the applicant. The 2nd respondent's unchallenged deposition that it would not part with possession or dispose of the property, coupled with the fact that as a non-registered proprietor it lacked legal capacity to transfer, meant the applicant failed to discharge that burden.
Legal principles established
#- An applicant under Rule 5(2)(b) must satisfy both the arguability and the nugatory-impact limbs; satisfying only one is not enough.
- In a Rule 5(2)(b) application the court does not have to determine the validity of the notice of appeal.
- A single arguable ground suffices for the arguability limb, and the applicant need not show the appeal would definitely succeed.
- Only an applicant with a legal interest capable of protection can obtain relief under Rule 5(2)(b).
Court orders
#- 1.The notice of motion dated 2nd December, 2013 is dismissed with costs to the respondents
- On appeal from
- High Court of Kenya at Nairobi
- HC Misc App No. 949 of 2007
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules (injunction and stay pending intended appeal)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Harry John Paul Arigi & 2 others v Kenya Ports Authority & 2 others [2015] KECA 408 (KLR)[2015] KECA 408 (KLR)30 Sept 2015applied
Cite this brief
#Cite this brief
Caselaw, "Pastuer Dukuzumuremyi v Anthony Milimu Lubulellah t/a Lubulellah & Associates Advocates [2014] KECA 563 (KLR)", Case Analysis (2014). Civil Application No. NAI 325 of 2013 (UR 239/2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/563/eng@2014-06-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.