Patrick Mukiri Kabundu v Miliki Limited [2016] KECA 256 (KLR)
The bottom line
#Kenya's Court of Appeal refused to stop a tenant's eviction because he owed years of unpaid rent and equity does not help those with unclean hands.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the applicant has an arguable intended appeal
- 2.Whether the intended appeal would be rendered nugatory if stay of execution is not granted
- 3.Whether the applicant, having come to equity with unclean hands by virtue of prolonged non-payment of rent, is deserving of the discretionary and equitable reliefs of stay and injunction
Key legal issues
#Arguability of the intended appeal
The draft grounds of appeal (jurisdiction of the High Court, conflicting orders, pending tribunal cases, fair trial, absence of prayer for vacant possession) were neither mundane nor frivolous, so the appeal was arguable.
The court examined the five salient grounds in the draft memorandum of appeal. It found them substantial enough to deserve full consideration, applying the principle that an arguable appeal is one raising even a single bona fide issue, without making definitive findings on the merits.
Whether the appeal would be rendered nugatory
The nugatory threshold was not met: the applicant did not show the respondent could not compensate him in damages, and his claimed loss was less than the undisputed rent arrears he owed.
The applicant claimed loss of over Kshs.3,000,000 but did not demonstrate the respondent's inability to pay damages. He owed Kshs.4,900,000 in undisputed arrears, could seek reinstatement into the premises, and there was no suggestion the premises would be alienated beyond his reach.
Clean hands and equitable discretion
By failing to pay rent for more than 43 months and defying a tribunal deposit order, the applicant came to equity with unclean hands and was undeserving of the discretionary reliefs sought.
Stay and injunction are discretionary and equitable remedies. The applicant conceded he was in rent arrears, offered no indication he intended to pay, and failed to comply with an earlier tribunal order to deposit Kshs.2,600,000. His conduct prejudiced the respondent's property rights, disqualifying him from equitable relief.
Legal principles established
#- An applicant under Rule 5(2)(b) must satisfy both the arguability and nugatory-ness conditions; satisfying only one will not suffice
- An arguable appeal need not be one that must succeed; it suffices that it raises even a single bona fide issue deserving full consideration
- A court considering an application under Rule 5(2)(b) must refrain from making definitive findings on the issues in dispute
- Equitable and discretionary remedies such as stay of execution and injunction are unavailable to a party who does not come to court with clean hands
Court orders
#- 1.The application for stay of execution pending appeal and injunction is dismissed
- 2.Costs of the application awarded to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Mombasa
- Civil Suit No. 126 of 2014 consolidated with Misc. Civil Appl. No. 149 & 151
- Jurisdiction invoked
- Sections 3(2) and 3A of the Appellate Jurisdiction Act; Rules 5(2)(b) and 101 of the Court of Appeal Rules
Relief refused
#Stay of execution of the High Court order of 6th June 2016 granting vacant possession, and injunction, pending the intended appeal
The appeal was arguable, but the nugatory test was not met since the respondent could compensate the applicant; and the applicant came to equity with unclean hands owing substantial rent arrears
Costs
This application fails and is accordingly dismissed with costs to the respondent.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
This application fails and is accordingly dismissed with costs to the respondent.
The applicant is obliged to satisfy both of those conditions; satisfying only one will not suffice.
Discretionary remedies such as injunctions cannot be used to perpetuate deceit and injustice.
Whether or not a successful appeal will be rendered nugatory depends on the circumstances of each case. The primary consideration is whether, if what is sought to be stayed were to happen, it is reversible and if not whether the applicant can be adequately compensated by damages.
Issues in the judgment
#The coram lists the station as Mombasa while the signature block records the ruling as made at Malindi.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Patrick Mukiri Kabundu v Miliki Limited [2016] KECA 256 (KLR)", Case Analysis (2016). Civil Application No. 35 of 2016 (UR 26/2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/256/eng@2016-09-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.