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Court of AppealPartially AllowedCivil Application No. NAI 140 of 2015 (UR 114/2015)· [2018] KECA 270 (KLR)

Kimani Gachuhi & another v Evangelical Mission for Africa & another [2018] KECA 270 (KLR)

Court of Appeal
12 October 2018
3,257 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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Kenya's Court of Appeal confirmed its 2016 order blocked all construction on the property, but refused to review its own 2018 contempt ruling.

What this practically means

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Executive summary

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This is a ruling of a three-judge bench of the Court of Appeal at Nairobi on a notice of motion dated 6th August 2018 by Kimani Gachuhi and Peter Mbuthia Gachuhi seeking, first, clarification of the orders the Court made on 29th January 2016 in their application for stay of execution and injunction pending an intended appeal against a High Court judgment of 19th May 2015 setting aside an arbitral award over LR No. 2951/84, and, secondly, in the alternative, review and setting aside of the Court's ruling of 20th July 2018 dismissing their contempt application. The 20th July 2018 ruling, by a differently constituted bench, had found the 2016 order ambiguous and held contempt unproved. The Court held that the order of 29th January 2016 was clear: it restrained the respondents from carrying out any development, construction or improvement on the suit property, and 'status quo' referred to the physical state of the property, not its use as a school. The order therefore spoke for itself, but the Court reiterated its meaning for the avoidance of doubt. On the alternative prayer, the Court held that under Rule 35 of the Court of Appeal Rules its review power extends only to arithmetical or clerical errors from an accidental slip or omission, which did not cover a considered decision. Its residual jurisdiction, as articulated in Benjo Amalgamated, could not be exercised because the 2018 ruling was already on appeal to the Supreme Court, and one Bench should not sit in appeal over another Bench's decision. The Court declined the alternative prayer and directed that costs of the application be in the appeal.

Key legal issues

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01

Interpretation and clarification of the orders of 29th January 2016

Holding

The order was clear and unambiguous; it restrained the respondents from carrying out any construction, development or improvement on the suit property, and 'status quo' referred to the state of the property, not its use as a school.

Reasoning

The Court examined the prayers actually granted and extracted in the certified order, which restrained excavation, development, construction or improvements and any activities altering the status quo on LR No. 2951/84. It referred to its own reasoning of 29th January 2016 showing the purpose was to preserve the subject of the appeal from alteration through construction. Both counsel were agreed there was no ambiguity; the 'contextual ambiguity' found in the 2018 contempt ruling did not render the order itself ambiguous.

p. 4
02

Whether the Court can review or set aside its ruling of 20th July 2018

Holding

No. The review power under Rule 35 does not apply to a considered decision, and the Court's residual jurisdiction cannot be exercised where the ruling is on appeal to the Supreme Court; one Bench should not sit in appeal over another Bench's decision in the same Court.

Reasoning

The Court accepted it has residual jurisdiction per Benjo Amalgamated to correct errors of law occasioning real injustice, but held the stringent conditions were unmet: the 20th July 2018 ruling was a considered decision, already subject of an appeal before the Supreme Court, and entertaining the merits would amount to one Bench reviewing another's decision. The applicants were directed to pursue redress in the Supreme Court.

p. 4

Legal principles established

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  • A status quo order in an injunction pending appeal freezes the state of the suit property as it was at the time the order was made; where the court's concern is preservation of the property, the order restrains any construction, development or improvement, not merely changes of use.
  • A Court of Appeal order that is clear speaks for itself and needs no clarification; ambiguity is not established merely because a differently constituted bench later found contextual ambiguity in contempt proceedings.
  • Under Rule 35 of the Court of Appeal Rules, this Court's power of review is limited to correcting arithmetical or clerical errors in a judgment or ruling arising from an accidental slip or omission; a considered decision cannot be revisited on that basis.
  • The Court of Appeal's residual jurisdiction to review its own decision, even where there is no appeal, is exceptional and cannot be exercised where the decision is already subject of an appeal before the Supreme Court.

Court orders

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  1. 1.Clarified the order of 29th January 2016 to the extent stated in the ruling, reiterating that the order restrained the carrying out of any development, construction or improvement of the suit property
  2. 2.Declined to review or set aside the ruling and order made on 20th July 2018
  3. 3.Directed that costs of the application shall be in the appeal

Authorities

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Legislation

  • Court of Appeal Rules, 2010Rule 5(2)(b)
  • Court of Appeal Rules, 2010Rule 35
  • Arbitration ActSection 35

Cases cited (4)

  • Shimmers Plaza Limited vs National Bank of Kenya Limited
    [2015] eKLR
  • British Columbia Teachers Federation vs British Columbia
    2011 VCSC 2013
  • Benjo Amalgamated Limited and another vs Kenya Commercial Bank limited
    [2014] eKLR
  • Nyutu Agrovet Limited vs Airtel Networks Limited
    [2015] eKLR
On appeal from
High Court of Kenya, Nairobi (Milimani Commercial & Admiralty Division)
Misc Civil Application No. 479 of 2014
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules, 2010 (stay of execution and injunction pending intended appeal); the present application is for interpretation/clarification and review of this Court's own orders

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Kimani Gachuhi & another v Evangelical Mission for Africa & another [2018] KECA 270 (KLR)", Case Analysis (2018). Civil Application No. NAI 140 of 2015 (UR 114/2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/270/eng@2018-10-12

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