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Court of AppealDismissedCivil Application No. 9 of 2017 (UR 7/17)

Daniel Lomagul Kandei & 2 others v Kamanga Holdings Limited & 40 others [2017] KECA 551 (KLR)

Court of Appeal of Kenya
10 May 2017
3,212 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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The Court of Appeal ruled you cannot 'stay' an order that merely strikes out your case, and injunctions come too late once land titles already exist.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Nyeri (Kariuki, Sichaale and Kantai, JJ.A.) on a Notice of Motion dated 26th January 2017 brought under Rule 5(2)(b) of the Court's Rules by three members of Losesia Group Ranch. They sought a stay of the ruling of Waithaka J of the High Court at Nyeri delivered on 18th January 2017 in ELC No. 74 of 2016 (OS), which upheld a preliminary objection and struck out their originating summons, and further sought conservatory and prohibitory injunctions restraining further dealings in 43 titles arising from the sub-division of the Group Ranch land pending the intended appeal. The respondents opposed, arguing that the striking out was a negative order incapable of being stayed, that the applicants lacked locus and should have filed a derivative suit, and that the notice of appeal was served late. The court restated the settled twin principles under Rule 5(2)(b) - an arguable appeal and the nugatory-ness of the appeal if stay is denied. It held that the decisive issue was whether a negative order can be stayed, and applying a long line of its own decisions, including Western College v Oranga, concluded that an order merely striking out a suit is a negative order incapable of being stayed. Although the court accepted it had original discretionary jurisdiction to consider injunctive relief under Rule 5(2)(b), it held that since titles over the suit parcels had already been issued, an injunction pending appeal would serve no purpose, its function being to preserve the status quo. The motion was accordingly dismissed with costs to the respondents.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the applicants had an arguable appeal
  2. 2.Whether a negative order (the striking out of the originating summons) is capable of being stayed
  3. 3.Whether the court could grant injunctive/conservatory relief under Rule 5(2)(b) and whether the applicants deserved such relief

Key legal issues

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01

Whether a negative order is capable of being stayed

Holding

A negative order - the striking out or dismissal of a suit with no positive direction to any party - is incapable of being stayed; the motion therefore fails on this threshold issue.

Reasoning

The court traced a long line of its own decisions, including Western College of Arts and Applied Sciences v Oranga and Republic v Kenya Wildlife Service, which hold that where the superior court has not ordered any party to do or refrain from doing anything or to pay any sum, there is nothing capable of execution or stay. Since the ruling under appeal merely struck out the originating summons, only costs were executable and no stay could lie.

p. 5
02

Whether the court could entertain the injunctive relief sought under Rule 5(2)(b)

Holding

The court had jurisdiction, exercising original discretion, to consider injunctive relief under Rule 5(2)(b) notwithstanding the rejection of the stay, but the applicants were not deserving of it.

Reasoning

Relying on Nairobi Metropolitan PSV Saccos Union and Equity Bank v West Link Mbo, the court recognised that Rule 5(2)(b) empowers it as a court of first instance to grant interlocutory orders preserving the subject matter of an appeal. However, applying Lake Tanners, the purpose of an injunction pending appeal is to preserve the status quo; since titles over the hived-off parcels had already been issued, an injunctive relief would serve no purpose and was refused.

p. 6
03

Whether the pending notice of appeal service defect affected the competency of the motion

Holding

The court declined to determine the 38th respondent's application to strike out the appeal for late service, as it remained undetermined, and treated the notice of appeal as still valid for present purposes.

Reasoning

The 38th respondent had filed a motion to dismiss the appeal on account of late service of the notice of appeal beyond the 14-day period under Rule 77. The court declined to comment, to avoid embarrassing the court that would hear that motion, but held that since that motion had not been determined, the notice of appeal had not been invalidated and the present motion could proceed.

p. 5

Legal principles established

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  • A negative order, such as the dismissal or striking out of a suit, is incapable of being stayed.
  • Under Rule 5(2)(b) an applicant must satisfy the twin principles of an arguable appeal and that the appeal would be rendered nugatory absent stay.
  • An injunction pending appeal under Rule 5(2)(b) is meant to preserve the status quo and cannot be granted where the situation it targets has already crystallised.

Court orders

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  1. 1.The motion dated 26th January 2017 is dismissed with costs to the respondents

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

majority

Wrote the judgment

majority

Wrote the judgment

On appeal from
High Court of Kenya at Nyeri
ELC No. 74 of 2016 (OS)
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules

Relief refused

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Stay of execution of the orders of Waithaka J delivered on 18th January 2017

The order sought to be stayed was a negative order incapable of being stayed

p. 5

Conservatory orders of injunction/prohibitory orders against the respondents' titles

Titles had already been issued over the parcels, so an injunction pending appeal would serve no purpose

p. 6

Costs

The motion is dismissed with costs to the respondents.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

In view of the above, we have come to the conclusion that the motion dated 26th January, 2017 cannot succeed and is for dismissal. It is accordingly dismissed with costs to the respondents.
p. 6Final orders - dismissal of the Rule 5(2)(b) motion with costs
In the motion before us the applicants sought a stay of the striking out of the O.S. This was a negative order which, by parity of a long line of decisions of this court as demonstrated above, is incapable of being stayed.
p. 5Negative orders incapable of being stayed
it is common ground that titles have been issued in respect of parcels of land hived off from land allegedly belonging to the Group Ranch. An injunctive relief would therefore serve no purpose.
p. 6Injunction pending appeal and preservation of status quo

Issues in the judgment

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minor

The 38th respondent's affidavit is dated 13th March 2017 while the 2nd respondent's affidavit is dated 24th February 2015, an apparent typographical error given the suit was filed in 2016.

minor

The applicants' rejoinder states titles to the hived portions were issued in 2010, whereas counsel for the 2nd to 37th respondents stated the titles were granted in 2016.

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Daniel Lomagul Kandei & 2 others v Kamanga Holdings Limited & 40 others [2017] KECA 551 (KLR)", Case Analysis (2017). Civil Application No. 9 of 2017 (UR 7/17). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/551/eng@2017-05-10

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.