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Court of AppealDismissedCivil Application No. 9 of 2015 (UR 6/15)· [2015] KECA 669 (KLR)

James Titus Kisia v Said Majid Said [2015] KECA 669 (KLR)

Court of Appeal of Kenya
29 May 2015
2,000 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to pause a High Court order, ruling that money compensation could fix any harm, so the case did not need freezing.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Mombasa (Makhandia, Ouko and M'inoti, JJ.A.) on a Motion under Rule 5(2)(b) of the Court of Appeal Rules in which James Titus Kisia sought a stay of execution of an order of Kasango J. of the High Court at Mombasa dated 5th March 2015 in HCCC No. 149 of 2014. The High Court had issued a mandatory injunction compelling the applicant to reinstate the respondent, a tenant claiming protection under Cap 302, into possession of two shops on Plot No. Mombasa/Block XVII/450, and a prohibitory injunction restraining the applicant from letting the property to third parties, pending trial. The High Court found that the applicant, not the tenant, had unlawfully added floors to the building and illegally evicted the respondent. Before the Court of Appeal, counsel argued numerous grounds including that compliance would require evicting new tenants not party to the suit. The court accepted that the intended appeal was arguable, since it raised the bona fide issue of whether the discretion to grant the injunctions was properly exercised. However, applying the principle that both limbs of the Rule 5(2)(b) test must be satisfied cumulatively, the court held that the appeal could not be rendered nugatory: any damage was quantifiable and compensable in damages, three shops remained vacant, and a party who engineers an illegal status quo cannot seek equity to sustain it. The application was dismissed with costs to the respondent.

Key legal issues

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01

Whether the intended appeal was arguable

Holding

The intended appeal was arguable, as it raised a bona fide issue on whether the discretion granting the interlocutory injunctions was properly exercised.

Reasoning

The court reiterated that an arguable appeal need not ultimately succeed; one bona fide issue suffices. The central question was whether the High Court's discretion in granting mandatory and prohibitory injunctions was properly exercised, an issue the applicant was at liberty to argue on appeal, though the court refrained from expressing concluded views.

p. 3
02

Whether the appeal would be rendered nugatory absent a stay

Holding

The appeal could not be rendered nugatory; any loss was quantifiable and compensable in damages, and three shops remained vacant and available.

Reasoning

Compliance with the High Court order was reversible: the applicant's damage was easily quantifiable in monetary terms, the respondent was not shown incapable of paying damages, and three of the five created shops remained unoccupied, so possession could be restored without irreversibly dispossessing the applicant.

p. 3
03

Whether both limbs of the Rule 5(2)(b) test must be satisfied

Holding

Both conditions must be satisfied; satisfying only one is not enough, so the application failed despite arguability.

Reasoning

Although the court accepted the appeal was arguable, the applicant was obliged to satisfy both the arguability and nugatory considerations. Having failed to demonstrate that the appeal would be rendered nugatory absent a stay, the application for stay could not succeed.

p. 4

Legal principles established

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  • An arguable appeal is one that raises a bona fide issue deserving of consideration, not one that must necessarily succeed; a single bona fide arguable issue suffices.
  • An applicant for stay of execution under Rule 5(2)(b) must satisfy both limbs - arguability and the nugatory test; satisfying only one is insufficient.
  • An appeal will be rendered nugatory only if what is sought to be stayed is irreversible or not compensable by damages.
  • A party found prima facie to have engineered an illegal status quo cannot invoke equitable remedies to maintain that status quo.

Court orders

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  1. 1.The application for stay of execution is dismissed
  2. 2.Costs of the application awarded to the respondent

Authorities

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Legislation

  • Court of Appeal RulesRule 5(2)(b)
  • Landlord and Tenant (Shops, Hotels and Catering Establishments) ActCap 302
  • Physical Planning Actnull
  • Public Health Actnull

Cases cited (9)

  • GITHUNGURI V. JIMBA CREDIT CORPORATION LTD. (NO. 2)
    [1988] KLR 838
  • KENYA RAILWAYS CORPORATION V. EDERMANN PROPERTIES LTD
    CA NO. NAI. 176 OF 2012
  • KENYA TEA GROWERS ASSOCIATION & ANOTHER V. KENYA PLANTERS & AGRICULTURAL WORKERS UNION
    CA NO. NAI 72 OF 2001
  • UNITED INDIA INSURANCE CO. LTD. V. EAST AFRICAN UNDERWRITERS (KENYA) LTD.
    [1985] E.A 898
  • STANLEY KANGETHE KINYANJUI V. TONY KETTER & 5 OTHERS
    CA NO. 31 OF 2012
  • KAMAU MUCHUHA V. THE RIPPLES LTD
    CA NO. NAI. 186 OF 1992
  • GUSII MWALIMU INVESTMENT CO. LTD & 2 OTHERS V. MWALIMU HOTEL KISII LTD.
    CA NO. 160 OF 1995 (KISUMU)
  • PAUL TIRIMBA MACHOGU V. RACHEL MORAA MOCHAMA
    CA NO. 31 of 2014 (KISUMU)
  • PETER MBURU NDURURI V. JAMES MACHARIA NJORE
    CA NO. 29 OF 2009 (UR 14/2009)
On appeal from
High Court of Kenya at Mombasa
HCCC No. 149 of 2014
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, "James Titus Kisia v Said Majid Said [2015] KECA 669 (KLR)", Case Analysis (2015). Civil Application No. 9 of 2015 (UR 6/15). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/669/eng@2015-05-29

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