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Court of AppealDismissedCivil Application No. 281 of 2017 (UR 221/2017)· [2018] KECA 605 (KLR)

Runda Water Ltd & another v Timothy John Nicklin & another [2018] KECA 605 (KLR)

Court of Appeal
11 May 2018
RNR. N. NambuyeAMAsike MakhandiaDMD. K. Musinga
1,752 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to block attachment of Runda Water's properties, holding that an arguable appeal alone is not enough under Rule 5(2)(b).

What this practically means

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Executive summary

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The applicants, Runda Water Ltd and Runda Association, moved the Court of Appeal under rule 5(2)(b) of its Rules seeking an injunction to restrain the Nicklins from attaching their properties pending an intended appeal. The intended appeal challenged a High Court ruling (L. Njuguna, J, 29 November 2017, HCCA No. 490 of 2016) refusing stay of a magistrate's order in CMCC No. 3062 of 2014 attaching the applicants' properties for contempt. The contempt arose from the applicants' failure to honour a permanent injunction requiring them to stop barricading the respondents' access to L.R No. 7785/35 via Ruaka Road and a mandatory injunction to remove the barriers. Applying the settled twin-limb test from Trust Bank Limited v Investech Bank Limited, the court found the first limb satisfied: the six draft grounds of appeal, including challenges to the magistrate's jurisdiction to order attachment for contempt and the applicability of Order 40(3) of the Civil Procedure Act, were arguable and not frivolous. However, the applicants failed the second limb. The court held their claims that removal of the security barrier would endanger Runda residents and that attachment of the water pump would disrupt water supply were self-serving: barriers could easily be reinstated, security lay with individual residents, and the respondents had other attachable assets. The court agreed entirely with the High Court's reasoning on substantial loss. The application was dismissed with costs to the respondents.

Key legal issues

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01

Whether the intended appeal was arguable

Holding

The court found the six draft grounds of appeal, including challenges to the magistrate's jurisdiction to punish for contempt and to the attachment order, were not frivolous and therefore arguable

Reasoning

The applicants exhibited a draft memorandum of appeal with six grounds, including that the magistrate's court lacked jurisdiction under section 10(6) of the Magistrates' Courts Act to order attachment for contempt, and that Order 40(3) of the Civil Procedure Act applied only to temporary injunctions. The court held these grounds were arguable even if not certain to succeed, and that a single arguable ground suffices.

p. 2
02

Whether the intended appeal would be rendered nugatory if the orders sought were not granted

Holding

The applicants failed to satisfy the nugatory limb; compliance with the order to remove barriers would not prejudice them since barriers could be reinstated, and other assets besides the water pump could be attached

Reasoning

The applicants argued removal of the security barrier would compromise Runda residents' security and that attachment of the water pump would disrupt water supply. The court found these arguments self-serving: removal of barriers could not prejudice the applicants since barriers could easily be reinstated, security lay with individual residents, and the respondents had many other attachable assets. Allowing the application would instead continue to prejudice the respondents' rights of access found by the lower court.

p. 2

Legal principles established

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  • To succeed under rule 5(2)(b) an applicant must satisfy both twin limbs: an arguable appeal and that the appeal would be rendered nugatory without the orders; satisfying only one limb is insufficient
  • An appeal or intended appeal need only be arguable, not certain to succeed, and one arguable ground suffices for the first limb

Court orders

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  1. 1.The application dated 6th December 2017 seeking stay of execution/injunction pending appeal was dismissed

Authorities

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Legislation

  • Court of Appeal RulesRule 5(2)
  • Court of Appeal RulesRule 5(2)(b)
  • Court of Appeal RulesRule 75
  • Magistrates' Courts ActSection 10(6)
  • Civil Procedure ActOrder 40(3)
  • Constitution of KenyaArticle 29
  • Constitution of KenyaArticle 43

Cases cited (3)

  • Trust Bank Limited & Another v Investech Bank Limited & 3 Others
    Civil Application NAI 258 & 315 of 1999 (ur)
  • Consolidated Bank of Kenya Ltd v Florence Wairimu Mbugua & Anor (Administrators of the Estate of Joseph Kiarie Mbugua)
    (2014) eKLR
  • Republic v Kenya Anti-Corruption Commission & 2 others
    [2009] KLR 31
On appeal from
High Court of Kenya at Nairobi
H.C.C.A. No. 490 of 2016
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (9)

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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, "Runda Water Ltd & another v Timothy John Nicklin & another [2018] KECA 605 (KLR)", Case Analysis (2018). Civil Application No. 281 of 2017 (UR 221/2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/605/eng@2018-05-11

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