George Kamau Kimani & 4 others v The County Government Of Trans-Nzoia & another [2016] KECA 11 (KLR)
The bottom line
#Kenya's Court of Appeal refused to stop evictions in Kitale, ruling the occupants' appeal had no real issues and they hadn't paid rent since 2013.
What this practically means
#Executive summary
#Key legal issues
#Arguability of the intended appeal
The intended appeal was not arguable; the applicants did not identify any cognizable issue, since the validity of the leases had already been determined in case No. 66 of 2013 and no appeal was preferred against that ruling
The court found the applicants had not flagged any serious issue for the intended appeal. The validity of the leases was argued and determined by Obaga, J. on 4th June 2014 in case No. 66 of 2013 between the same parties, and no appeal was preferred. The matter was therefore res judicata and could not be re-opened, and the applicants were bound by their unequivocal written undertaking, witnessed by their advocate, to vacate the premises by 11th June 2014.
Res judicata and issue estoppel
The validity of the leases was res judicata and the doctrine of issue estoppel barred its re-litigation in the subsequent suit even on a different cause of action
Relying on section 7 of the Civil Procedure Act and Trade Bank Limited v L Z Engineering Construction Limited, the court held that a matter distinctly put in issue and determined in a prior suit between the same parties is conclusive, whether the point was one of fact, law, or mixed fact and law. The principle is a matter of public policy, a pillar of the judicial system, intended to bring finality to litigation.
Whether the nugatory test needed consideration
Having found the appeal not arguable, the court declined to consider the nugatory limb of the rule 5(2)(b) test
The twin principles under rule 5(2)(b) must both be satisfied. Since the applicants failed on the first limb - arguability - it was unnecessary for the court to determine whether the appeal would be rendered nugatory if the interim injunction were refused.
Legal principles established
#- To succeed on an application under rule 5(2)(b), an applicant must satisfy the twin tests of an arguable appeal and that the appeal would be rendered nugatory if the order sought is not granted
- An arguable appeal must elicit at least one cognizable issue, not frivolous ones
- An issue directly and distinctly determined in an earlier suit between the same parties is issue-estopped and cannot be re-litigated even in a suit founded on a different cause of action
- A party who comes to court for a discretionary remedy with unclean hands, such as failing to pay rent, may be disentitled to that remedy
Court orders
#- 1.The application for interim injunction pending filing, hearing and determination of the intended appeal is dismissed
- 2.Costs of the application awarded to the respondents
- On appeal from
- High Court of Kenya at Eldoret
- ELC No. 88 of 2015
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules (application for injunction pending intended appeal)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "George Kamau Kimani & 4 others v The County Government Of Trans-Nzoia & another [2016] KECA 11 (KLR)", Case Analysis (2016). Civil Application No. 66 of 2016 (UR 35/2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/11/eng@2016-11-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.