Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealDismissedCivil Application No. NAI. 296 of 2015 (UR 253/15)· [2016] KECA 222 (KLR)

Khairunnisa Mohamedali Harunani & another v Niranjan Zaverchand Shah Shushila & 2 others [2016] KECA 222 (KLR)

Court of Appeal
7 October 2016
1,391 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

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

#
The applicants, former registered proprietors who subdivided land and sold one parcel to the respondents while retaining the other, sought an injunction under Rule 5(2)(b) of the Court of Appeal Rules restraining the respondents from disposing of L.R No. 1870/II/305 and the servants' quarters they occupied, pending an intended appeal against Mutungi, J.'s ruling dismissing their interlocutory injunction application. They claimed rights by adverse possession and under an agreement said to allow them continued occupation, and asserted the intended appeal was arguable and would be rendered nugatory if the disposal proceeded. The respondents contended they held indefeasible absolute title, that the applicants occupied with consent, and that damages would be an adequate remedy. Applying the settled twin principles from Stanley Kangethe Kinyanjui v Tony Keter, the Court expressed doubts on arguability because the applicants' own pleadings admitted occupation with the respondents' consent, undermining an adverse possession claim, and because the alleged agreement was oral, contrary to section 3(3) of the Law of Contract Act. On the second limb, the Court found the applicants had not demonstrated that the appeal would be rendered nugatory or that damages would be inadequate. The application was dismissed with costs to the respondents. The decision below was not disturbed, as the ruling dealt only with the interlocutory application pending the intended appeal.

Key legal issues

#
01

Arguability of the intended appeal

Holding

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

Reasoning

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.

p. 3
02

Nugatory value of the intended appeal

Holding

The applicants failed to demonstrate the appeal would be rendered nugatory or that damages would not be an adequate remedy

Reasoning

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.

p. 3

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. 1.The application dated and filed under Rule 5(2)(b) seeking an injunction pending the intended appeal is dismissed
  2. 2.Costs of the application to the respondents

Authorities

#

Legislation

  • Court of Appeal RulesRule 5(2)(b)
  • Court of Appeal RulesRule 41
  • Court of Appeal RulesRule 75
  • Law of Contract ActSection 3(3)

Cases cited (4)

  • Jared Sagini Keengwe -vs- Walter Onchwari & 2 Others
    (2014) eKLR
  • Mbugua Njunguna -vs- Elijah Mburu Wanyoike & Another
    (2004) eKLR
  • Multimedia University & Another -vs- Professor Gitile N. Naituli
    (2014) eKLR
  • Stanley Kangethe Kinyanjui -vs- Tony Keter & Others
    [2013] eKLR
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.

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.