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Court of AppealDismissedCivil Application No. NAI 162 of 2013 (UR 111/2013)· [2014] KECA 640 (KLR)

Titus Gicharu Mwangi v Mary Nyambura Murima & another [2014] KECA 640 (KLR)

Court of Appeal
4 April 2014
PKP. Kihara KariukiPKP. O. KiageKMK. M'Inoti
2,014 words in judgment
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The bottom line

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The Court of Appeal refused to freeze a disputed Nairobi property sale because the buyer couldn't prove the appeal would be pointless without one—and his dishonesty cost him.

What this practically means

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Executive summary

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The applicant, Titus Gicharu Mwangi, moved the Court of Appeal under sections 3A and 3B of the Appellate Jurisdiction Act and rule 5(2)(b) of the Court of Appeal Rules for an injunction restraining Mary Nyambura Murima and Samuel Mburu Kibiro from dealing with a Nairobi plot pending an intended appeal from Mutungi, J's order of 11th June 2013, which had dismissed his application for a temporary injunction in ELC Case No. 967 of 2012. The applicant alleged an agreement to purchase the property for KShs.4.5 million, payment of a KShs.2 million deposit, and an unlawful resale to the 2nd respondent. He raised two arguable grounds: absence of consideration for the resale, and invalidity of the 1st respondent's notice to complete. The court accepted that the notice-to-complete issue was arguable, restating the settled twin principles under rule 5(2)(b): an arguable appeal and nugatory effect, both of which must be satisfied, with a single arguable issue sufficing. However, neither party addressed the nugatory limb, and the applicant failed to show that the respondents could not repay the purchase price if the appeal succeeded. Independently, the court found the applicant undeserving of equitable relief: contrary to his sworn statement, bank statements showed he had not complied with an order to deposit rent into a joint account. The court deprecated his lack of candor and dismissed the motion with costs to the respondents.

Key legal issues

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01

The twin principles governing applications under rule 5(2)(b)

Holding

The applicant must show both an arguable appeal and that the appeal will be rendered nugatory absent the order sought; the nugatory limb must be addressed by the applicant

Reasoning

The court restated the settled principles: arguability plus nugatory effect, both of which must be satisfied. The applicant failed on the second limb because no material was placed before the court showing the respondents could not repay the KShs.4.5 million purchase price if the appeal succeeded.

p. 2
02

Arguability of the intended appeal

Holding

Whether the letter of 16th November 2012 constituted a valid notice to complete under the Law Society Conditions of Sale is an arguable issue; other issues are left to the full hearing of the appeal

Reasoning

The court found the notice-to-complete question arguable but declined to resolve the disputed issues of transfer to the 2nd respondent and the absence of an injunction sought against him, holding these are matters for the interlocutory appeal and that the court cannot fully resolve disputes at this stage.

p. 3
03

Conduct and candor as a bar to equitable relief

Holding

A party who fails to comply with a court order and misleads the court on oath is undeserving of the discretionary, equitable remedy of an injunction

Reasoning

The applicant deposed that rent had been deposited into the joint account as ordered, whereas bank statements showed only sporadic, partial deposits ceasing in July 2013. The court deprecated this lack of candor, holding that conduct in all matters relating to the suit must meet the approval of a court of equity before equitable relief can issue.

p. 3

Legal principles established

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  • An applicant under rule 5(2)(b) must satisfy both limbs - an arguable appeal and that the appeal will be rendered nugatory if the order is not granted; satisfying only one is insufficient
  • A single arguable issue suffices; the applicant need not establish a multiplicity of arguable grounds
  • An injunction is an equitable remedy and will not be granted to a party whose conduct shows they are undeserving of equitable relief
  • At the hearing of an application for injunction pending appeal, the Court of Appeal does not fully resolve the issues in dispute between the parties

Court orders

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  1. 1.The applicant's motion dated 9th July 2013 seeking an injunction pending appeal was dismissed with costs to the respondents

Authorities

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Legislation

  • Appellate Jurisdiction Actsection 3A
  • Appellate Jurisdiction Actsection 3B
  • Court of Appeal Rulesrule 5(2)(b)

Cases cited (9)

  • Charterhouse Bank Ltd v Central Bank of Kenya & Another, Civil Application No. 200 of 2006
    unreported
  • Republic v Kenya Anti-Corruption Commission & 2 Others
    [2009] KLR 31
  • Nation Newspapers Ltd v Peter Baraza Rabando, Civil Appeal No. 1 of 2007
    unreported
  • Reliance Bank Ltd (In Liquidation) v Norlake Investments Ltd
    (2002) 1 EA 227
  • Peter Mburu Ndururi v James Macharia Njore, CA No. 29 of 2009 (UR 14/2009)
  • Transouth Conveyors Ltd v Kenya Revenue Authority & Another, Civil Application No. 37 of 2007
    unreported
  • Retreat Villas Ltd v Equatorial Bank Ltd & Others, Civil Application No. 40 of 2006
    unreported
  • Royal Media Services Ltd v Telkom Kenya Ltd & Others, Civil Application No. Nai. 66 of 2000
  • David Kamau Gakuru v National Industrial Credit Bank, Civil Appeal No. 84 of 2001
On appeal from
High Court of Kenya at Nairobi
HC ELC No. 967 of 2012
Jurisdiction invoked
Sections 3A and 3B of the Appellate Jurisdiction Act and rule 5(2)(b) of the Court of Appeal Rules - application for injunction pending appeal (intended appeal from High Court)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (10)

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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, "Titus Gicharu Mwangi v Mary Nyambura Murima & another [2014] KECA 640 (KLR)", Case Analysis (2014). Civil Application No. NAI 162 of 2013 (UR 111/2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/640/eng@2014-04-04

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