Kaushumu Wambui v Hamisi Omari & another [2015] KECA 899 (KLR)
The bottom line
#The Court of Appeal dismissed a woman's bid to stop her eviction pending appeal because she proved the appeal was arguable but not that refusing the injunction would doom it.
What this practically means
#Executive summary
#Key legal issues
#Threshold for injunction pending appeal under rule 5(2)(b)
The applicant must demonstrate both arguability of the intended appeal and that the appeal would be rendered nugatory if the orders are not granted; the applicant failed on the second limb.
The Court reiterated the well-settled two-limb test from Republic v Kenya Anti-Corruption Commission. While the arguability limb was not conclusively resolved, the applicant advanced no material showing how refusal of the injunction would render the appeal nugatory, and the Court declined to speculate on possible eviction or loss of rent.
Effect of an out-of-time notice of appeal on a rule 5(2)(b) application
The competence of the notice of appeal is a non-issue in a rule 5(2)(b) determination; deficiencies in the notice can be corrected through remedies the rules provide.
Although the notice of appeal was lodged beyond the fourteen days allowed by rule 74, the Court held, following Peter Njuguna Njoroge v Zipporah Wangui Njuguna, that it must avoid determining the validity of the notice because the rules expressly provide the parties with solutions which they are yet to invoke.
Unchallenged Chief Kadhi's opinion and its bearing on arguability
The applicant's failure to challenge the Chief Kadhi's adverse opinion before the High Court created doubt as to the arguability of the intended appeal.
The parties had agreed to proceed by affidavit evidence and to seek the Chief Kadhi's opinion on the validity of the alleged woman-to-woman marriage. The opinion was rendered and available before the trial court relied on it, yet the applicant chose not to challenge it. The Court drew an adverse inference but declined to conclusively determine the issue of acquiescence at that stage.
Discretionary power must be exercised judiciously
The Court's discretionary jurisdiction under rule 5(2)(b) must be exercised judiciously, based on evidence and sound legal principles, without caprice or whim.
Drawing on Republic v Kenya Anti-Corruption Commission and Patel v Transworld Safaris, the Court emphasised that discretion must be exercised judicially and that the duty falls squarely on the applicant to place before the Court the evidence upon which the discretion can be exercised in her favour.
Legal principles established
#- A party seeking orders under rule 5(2)(b) must demonstrate both that the intended appeal is arguable and that the appeal would be rendered nugatory if the orders are not granted; demonstrating only one limb is insufficient.
- In a rule 5(2)(b) application, the Court does not determine the validity of a notice of appeal, including one filed out of time; the rules provide remedies for such deficiencies.
- An arguable appeal need not necessarily succeed; it is sufficient that it raises even a single bona fide point.
- The burden of demonstrating both limbs for the grant of an injunction under rule 5(2)(b) rests squarely on the applicant, who must place evidence before the Court.
Court orders
#- 1.The application for injunction pending appeal under rule 5(2)(b) is dismissed
- 2.The respondents shall have the costs of the application
- On appeal from
- High Court of Kenya at Nairobi
- Succession Cause No. 1512 of 2006
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (3)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- PATRICK KIGORO & another v SABINA NYAKENYA MWANGA[2016] KEHC 1386 (KLR)5 Apr 2016followed
- PATRICK KIGORO & another v SABINA NYAKENYA MWANGA[2016] KEHC 5773 (KLR)5 Apr 2016followed
- Stephen Mbugua Mwagiru & another v Tatu City Limited [2015] KECA 577 (KLR)[2015] KECA 577 (KLR)3 Jul 2015followed
Cite this brief
#Cite this brief
Caselaw, "Kaushumu Wambui v Hamisi Omari & another [2015] KECA 899 (KLR)", Case Analysis (2015). Civil Application No Nai 173 of 2014 (UR 135/2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/899/eng@2015-03-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.