Mohammed Salim Hussein & 61 others v Egerton University [2017] KECA 689 (KLR)
The bottom line
#The Court of Appeal dismissed 62 residents' bid to stop Egerton University from evicting them, ruling their planned appeal was frivolous and an abuse of process.
What this practically means
#Executive summary
#Key legal issues
#Whether refusal to certify an application urgent and to grant ex parte orders is appealable as of right
No; such orders are not among those appealable as of right under order 43 rule 1(w) of the Civil Procedure Rules and leave to appeal should have been sought
The Court held there was substance in the contention that a judge's decision declining to certify urgency and refusing ex parte temporary orders does not fall within the categories of appealable orders under order 43 rule 1(w). An aggrieved party must therefore first seek leave before preferring an appeal against such a refusal.
Whether a negative order incapable of stay defeats an application under rule 5(2)(b)
Although a dismissed suit or application cannot attract stay of the resulting decree save as to costs, an aggrieved party may still apply for an injunction under rule 5(2)(b)
The Court distinguished between stay of execution and injunction as remedies under rule 5(2)(b). While it is settled that no stay lies of an order arising from dismissal of a suit or application except as to costs, the present application was framed as one for injunction, not stay of execution, and was therefore not defeated on that ground.
Whether the intended appeal was arguable
No; the intended appeal was frivolous and the application was an abuse of the Court's process
The Court considered the draft memorandum of appeal challenging the judge's exercise of discretion in declining to certify the application urgent. Applying the established standard for interference with discretion, and noting the judge's reliance on the six-month delay since judgment, the Court found no misdirection and concluded the appeal was frivolous.
Whether the intended appeal would be rendered nugatory
No; the underlying application would still be heard inter partes on its merits
The Court reasoned that rejecting the injunction application would not render the intended appeal nugatory because the applicants' chamber application remained listable for inter partes hearing before the trial judge, where its merits could still be fully canvassed.
Legal principles established
#- This Court will not interfere with the exercise of judicial discretion unless it is clearly wrong - the judge misdirected himself, acted on matters he should not have, or failed to consider matters he should have, arriving at a wrong conclusion
- Where an application or suit has been dismissed there cannot be an order to stay the order or decree arising from such dismissal save as to costs, but an injunction under rule 5(2)(b) may still be sought
- Refusal to certify an application urgent and to grant ex parte temporary orders is not appealable as of right under order 43 rule 1(w) of the Civil Procedure Rules; leave to appeal is required
Court orders
#- 1.The application for injunction pending the hearing and determination of the intended appeal is dismissed with costs to the respondent
- On appeal from
- High Court of Kenya at Malindi
- E.L.C. Civil Case No. 97 of 2014
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mohammed Salim Hussein & 61 others v Egerton University [2017] KECA 689 (KLR)", Case Analysis (2017). Civil Application No. 68 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/689/eng@2017-02-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.