Khairunnisa Mohamedali Harunani & another v Niranjan Zaverchand Shah Shushila & 2 others [2016] KECA 222 (KLR)
The bottom line
#Kenya's Court of Appeal refused to freeze a disputed Nairobi property, confirming injunctions pending appeal require both an arguable case and proof the appeal would be worthless without protection.
What this practically means
#Executive summary
#Key legal issues
#Arguability of the intended appeal
The Court expressed doubts on arguability, noting the applicants' own pleadings admitted occupation with the respondents' consent, undermining an adverse possession claim, and that the alleged agreement was not in writing contrary to section 3(3) of the Law of Contract Act
The Court, without making final findings, observed that the applicants admitted permissive occupation in their pleadings, which is inconsistent with adverse possession. It further noted that the alleged oral agreement conferring rights over the suit premises offended section 3(3) of the Law of Contract Act, which requires certain contracts to be in writing. These considerations caused the Court to doubt whether the intended appeal was arguable under the first twin principle.
Nugatory value of the intended appeal
The applicants failed to demonstrate the appeal would be rendered nugatory or that damages would not be an adequate remedy
The applicants asserted economic and sentimental value in the suit premises but did not demonstrate how the appeal would be rendered nugatory if the injunction was refused. The Court held they failed to show that damages would not adequately compensate any loss if the intended appeal ultimately succeeded, so the second twin principle was also not satisfied.
Legal principles established
#- An applicant under Rule 5(2)(b) must satisfy both twin principles - an arguable appeal and that the appeal would be rendered nugatory if the orders sought are not granted
- A single bona fide arguable ground suffices for arguability, and an arguable appeal need not succeed but must not be frivolous
- On a Rule 5(2)(b) application the Court must not make definitive or final findings of fact or law
Court orders
#- 1.The application dated and filed under Rule 5(2)(b) seeking an injunction pending the intended appeal is dismissed
- 2.Costs of the application to the respondents
- On appeal from
- High Court of Kenya at Nairobi
- ELC Case No. 1183 of 2014 (O.S)
- Jurisdiction invoked
- Rule 5(2)(b) & 41 of the Court of Appeal Rules
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Koinange Investments and Development Co Ltd v Ngethe & 3 others (Sued as the personal representatives of the Estate of Robert Nelson Ngethe (Deceased)) (Civil Application E380 of 2022) [2023] KECA 104 (KLR)[2023] KECA 104 (KLR)3 Feb 2023
- Alice Khisa v Lutuli Alex Wanyonyi & another [2017] KECA 189 (KLR)[2017] KECA 189 (KLR)20 Jul 2017
Cite this brief
#Cite this brief
Caselaw, "Khairunnisa Mohamedali Harunani & another v Niranjan Zaverchand Shah Shushila & 2 others [2016] KECA 222 (KLR)", Case Analysis (2016). Civil Application No. NAI. 296 of 2015 (UR 253/15). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/222/eng@2016-10-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.