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Court of AppealAllowedCivil Application No. NAI 134 of 2014 (UR 109/2014)

Hesbon K. Limisi v Delilah Achieng Mathews, Argwings Kodhek Ochiely & The Chief Lands Registrar, Nairobi

Court of Appeal
6 February 2015
PWP. N. WakiSKS. Gatembu KairuJMJ. Mohammed
1,979 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal blocked the sale of a disputed Nairobi flat, protecting a buyer's claim while his appeal is heard.

What this practically means

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Executive summary

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This is a single-judge-panel-coram ruling of the Court of Appeal at Nairobi on a notice of motion dated 10 June 2014 brought under Rule 5(2)(b) of the Court of Appeal Rules, 2010, seeking an injunction restraining the respondents from transferring or registering any dealing over Flat No. F on Block MF 32, Madaraka Estate, Nairobi, pending the hearing of Civil Appeal No. 273 of 2014. The appeal challenges a ruling of Gitumbi, J of 6 June 2014 dismissing the applicant's injunction application in ELC HCCC No. 1227 of 2013 for failure to establish a prima facie case. The applicant's case was that he bought the property from the 1st respondent under a 2010 sale agreement, paid KShs.4.4 million, took possession, and that the 1st respondent then executed a second sale of the same property to the 2nd respondent for KShs.5.5 million. Applying the settled two-limb test, the court found the draft grounds of appeal - on the exhibited sale and tenancy agreements and the 1st respondent's admissions - arguable and not frivolous, and was satisfied the appeal would be rendered nugatory if the property were transferred to a third party. The application was allowed, with costs of the application to abide the outcome of the appeal. The 1st and 3rd respondents did not appear though served.

Key legal issues

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01

Test for injunction pending appeal under Rule 5(2)(b)

Holding

The applicant satisfied both limbs: the grounds challenging the finding of no prima facie case were arguable, and transfer of the suit property to a third party would render the appeal nugatory.

Reasoning

The court applied the settled two-limb test from Kagunyi Thande. The draft memorandum raised arguable grounds on the existence of a prior sale agreement and the judge's treatment of the prima facie case. Since the property might be transferred and become irreversible, damages would not suffice, so the discretion was exercised in the applicant's favour.

p. 4

Legal principles established

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  • An applicant under Rule 5(2)(b) must show an arguable appeal and that the appeal will be rendered nugatory if the orders sought are not granted.
  • An arguable appeal need not necessarily succeed; nugatory-ness is a question of fact depending on the circumstances of each case.

Court orders

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  1. 1.Injunction restraining the respondents from transferring and/or registering any dealing in respect of the suit property pending the hearing and determination of Civil Appeal No. 273 of 2014
  2. 2.Costs of the application to abide by the outcome of the appeal
On appeal from
High Court of Kenya at Nairobi (ELC)
ELC HCCC No. 1227 of 2013
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules, 2010

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, "Hesbon K. Limisi v Delilah Achieng Mathews, Argwings Kodhek Ochiely & The Chief Lands Registrar, Nairobi", Case Analysis (2015). Civil Application No. NAI 134 of 2014 (UR 109/2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/966/eng@2015-02-06

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