Double Clean Limited & 4 others v Jambo Holdings Ltd & 2 others [2016] KECA 420 (KLR)
The bottom line
#Kenya's Court of Appeal froze a contempt conviction pending appeal but refused to evict the party already in possession of the disputed land.
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 intended appeal is arguable (not frivolous)
- 2.Whether, if the intended appeal succeeds, it would be rendered nugatory unless stay of execution and/or injunction is granted
Key legal issues
#Arguability of the intended appeal
The intended appeal was arguable: the trial judge herself acknowledged that the sub-division of LR No. 7750 and allegations of fraud could only be determined at a full hearing, and it was arguable whether ex parte injunction orders against LR 7750 could bind the sub-divisions without amendment.
The court found a single bona fide arguable point suffices. The trial judge had herself held that the sub-division process and fraud allegations required evidence at a full trial, creating uncertainty about ownership. It was also arguable whether a mandatory injunction could issue ex parte at the interim stage and whether a contempt finding could be made absent service of the order allegedly disobeyed.
Nugatory value - injunction and eviction prayers
The nugatory principle was not satisfied in respect of the injunction/eviction prayers because the 1st respondent was in possession pursuant to an executed reinstatement order and the interim orders remain reversible at trial.
The reinstatement of the 1st respondent had already been effected and could not be stayed; the injunction sought was mandatory and would evict the 1st respondent. The orders below were temporary, pending full trial, and would be confirmed or reversed after hearing, with a right of appeal against the final orders. The appeal's success would not be rendered worthless.
Nugatory value - contempt sentencing
The nugatory principle was satisfied in respect of the contempt findings because the applicants and John Mugo Njeru were due to be sentenced and might serve a prison term before the intended appeal was heard, rendering the appeal academic.
The directors and John Mugo Njeru had been found in contempt and were due for sentencing. A prison sentence served before the appeal is determined cannot be undone, so the appeal against the committal proceedings would be of academic interest. The court relied on the Wambora and Canadian Hunger Foundation decisions on imprisonment and nugatory appeals.
Legal principles established
#- An applicant under rule 5(2)(b) must satisfy the twin principles: that the appeal or intended appeal is arguable, and that if stay or injunction is not granted the appeal would be rendered nugatory.
- Hadkinson v Hadkinson does not lay down a rigid rule that a party in contempt must be denied audience; the rule is hedged with exceptions and subject to the court's discretion, including where the party challenges the jurisdiction of the court to make the impugned order.
- An appeal will be rendered nugatory if what is sought to be stayed, if allowed to happen, is irreversible and damages will not reasonably compensate the aggrieved party; a potential prison term served before the appeal is heard renders an appeal nugatory.
Court orders
#- 1.Pending the hearing and determination of the intended appeal, there be a stay of execution of the order of Gacheru J. issued on 15th April, 2016 by which the directors of the applicants and John Mugo Njeru were found to be in contempt of Court
- 2.The costs of the motion shall be in the intended appeal and, if not filed, will be borne by the applicants
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- ELC No. 219 of 2015
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules, jurisdiction founded on the filing of a Notice of Appeal under Rule 75
Relief refused
#Injunction restraining the respondents from trespassing, entering, selling, charging, disposing of or interfering with Nairobi Block 92/225-230 pending the appeal
The 1st respondent is already in possession pursuant to an effected order which cannot be stayed; a mandatory injunction would evict the 1st respondent and the appeal would not be rendered nugatory since interim orders can be reversed after trial
Order for eviction of the 1st respondent from the suit parcels if possession had been taken up
The status quo of the 1st respondent's possession is reversible; if the appeal succeeds the applicants will be reinstated to the suit property
Costs
The costs of the motion shall be in the intended appeal and, if the intended appeal is not filed, the costs will be borne by the applicants
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.
The upshot is that this application is allowed, in part. We order that, pending the hearing and determination of the intended appeal, there be a stay of execution of the order of Gacheru J., issued on 15th April, 2016 by which order the learned Judge found the directors of the applicants and John Mugo Njeru to be in contempt of Court.
The costs of the motion shall be in the intended appeal and if not filed, will be borne by the applicants.
An arguable appeal is not one which must necessarily succeed, but one which ought to be arguable fully before the court; one which is not frivolous.
It is a strong thing for a court to refuse to hear a party to a cause and it is only to be justified by grave considerations of public policy – when the contempt itself impedes the cause of justice and there is no other effective means of ensuring his compliance.
In considering an application brought under Rule 5(2) the Court must not make definitive or final findings of either fact or law at that stage as doing so may embarrass the ultimate hearing of the main appeal.
Issues in the judgment
#The judgment inconsistently dates the 1st respondent's successful application in the court below, describing it as an 'application dated 19th May, 2015' in one passage and later stating that 'the learned judge allowed the 1st respondent's application of 12th March, 2015'.
The sale agreement date is recorded as '28th June, 2996', an apparent typographical error for 1996.
The applicants' third prayer lists six parcels including Nairobi Block 92/228, whereas the second prayer lists only five parcels (omitting Block 92/228), an internal inconsistency in the notice of motion as reproduced.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Kenya Hospital Association t/a The Nairobi Hospital & another v Onyambu & 2 others (Civil Application E449 of 2025) [2025] KECA 1653 (KLR)[2025] KECA 1653 (KLR)9 Oct 2025applied
Cite this brief
#Cite this brief
Caselaw, "Double Clean Limited & 4 others v Jambo Holdings Ltd & 2 others [2016] KECA 420 (KLR)", Case Analysis (2016). Civil Application No. 100 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/420/eng@2016-07-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.