Attain Advisory Consultants v Nairobi City County & 3 others [2018] KECA 519 (KLR)
The bottom line
#Kenya's Court of Appeal stopped a land deal that would have stripped a buyer of property rights without their involvement, protecting the buyer pending appeal.
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
- 2.Whether the appeal would be rendered nugatory if stay/injunction is not granted
Key legal issues
#Arguability of the intended appeal
The single condensed ground - that the Judge erred in adopting a consent affecting the applicant's proprietary rights without its involvement - was an arguable point sufficient for the arguability limb
The applicant was not a party to the consent adopted as an order of the court, yet the consent divested it of ownership of LR No. 209/403/3. Even one bona fide arguable ground satisfies the first limb; an arguable appeal need not succeed, only be non-frivolous and deserving of full argument.
Nugatory aspect
The appeal would be rendered nugatory if the respondents were registered as owners and the purchase price refunded before the appeal was heard; real, not idle, apprehension was established
Execution of the consent order would change the ownership and character of the property irreversibly during the pendency of the appeal. Reversibility and compensability in damages are the touchstones; here registration of the respondents and refund of the purchase price would render the appeal otiose.
Nature of Rule 5(2)(b) jurisdiction
Rule 5(2)(b) empowers the Court to grant stay of execution, stay of proceedings or injunction, guided by the twin principles in Stanley Kng'ethe Kinyanjui v Tony Ketter
The jurisdiction is discretionary and interlocutory in character; the Court applied the twin principles of arguability and nugatory effect as summarised in Stanley Kangethe Kinyanjui v Tony Ketter & 5 Others, and declined to make definitive findings at that stage.
Legal principles established
#- An application under Rule 5(2)(b) must satisfy both twin principles of arguability and nugatory effect
- A court hearing a Rule 5(2)(b) application must not make definitive findings of fact or law
- A single bona fide arguable ground of appeal suffices on the arguability limb
- An arguable appeal need not be one that must succeed, only one that is not frivolous
- Nugatory effect depends on whether the impugned action is reversible or compensable in damages
- The purpose of a stay or injunction is preservation of the subject matter pending appeal
Court orders
#- 1.Injunction pending the hearing and determination of the appeal restraining the respondents in terms of prayer 3 of the notice of motion dated 2nd March, 2018
- 2.Costs of the application to be in the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi (Environment and Land Court)
- ELC Misc. No. 144 of 2014
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules
Relief refused
#Stay of execution of the ruling adopting the consent order
The impugned decision did not make orders capable of being stayed, the court instead granting an injunction
Costs
Costs of this application shall be in the appeal.
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 applicant has satisfied the two limbs and is entitled to an order of injunction.
Pending the hearing and determination of the appeal, the respondents are restrained in terms of prayer 3 of the notice of motion dated 2 nd March, 2018. Costs of this application shall be in the appeal.
An application for stay must satisfy the court on both of the twin principles.
It is settled that even a single bona fide arguable ground of appeal is sufficient.
It will depend on whether or not what is sought to be stayed if allowed to happen is reversible; or if it is not reversible whether damages will reasonably compensate the party aggrieved.
Issues in the judgment
#The coram prints the third judge's name as 'ASIKE – MAKHANDIA' without initials, with a dash, while the other judges have initials; rendered consistently as printed
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Attain Advisory Consultants v Nairobi City County & 3 others [2018] KECA 519 (KLR)", Case Analysis (2018). Civil Application No. NAI 55 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/519/eng@2018-06-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.