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Court of AppealPartially AllowedCivil Appeal No. 184 of 2013· [2018] KECA 832 (KLR)

Kenya Hotel Properties Limited v Willesden Investments Limited & Kenya Revenue Authority

Court of Appeal
16 February 2018
William OukoW. OukoSKS. Gatembu KairuKMK. M'Inoti
6,103 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~24 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal ruled you cannot challenge a court decree through a separate lawsuit, but a judge cannot make orders beyond what parties asked for.

What this practically means

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Executive summary

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This appeal arose from a ruling of the High Court (Musinga, J) dismissing Kenya Hotel Properties Limited's application for interim relief in a constitutional petition challenging the title of Willesden Investments Limited to LR No. 209/12748, allegedly excised from Kaunda Street road reserve. The appellant sought an injunction restraining Development Bank of Kenya from paying Kshs. 61,979,918.37 under a bank guarantee securing the decree in HCCC No. 367 of 2000, a conservatory order staying execution of that decree, and orders directing the anti-corruption Commission, KRA and the Commissioner of Lands to investigate unpaid taxes and land rent. The Court of Appeal, in a single judgment of the court, held that the applicable test for conservatory orders extends beyond Giella v Cassman Brown to public interest and constitutional values per the Supreme Court in Munya, but that the Judge's refusal rested on his finding that the application was an abuse of process: it sought in a different suit to stay a decree in another suit, contrary to Section 34(1) of the Civil Procedure Act, and amounted to a collateral attack on prior refusals of stay. On res judicata, the Court held that legality of Willesden's title was not litigated in HCCC No. 367 of 2000 or Civil Appeal No. 149 of 2007, whose cause of action was trespass, and deferred the fate of HCCC No. 35 of 2010 to the pending Civil Appeal No. 325 of 2013. The appeal partially succeeded only to the extent that the Judge's order directing payment of Kshs. 37,567,717.00 to KRA was set aside as unconnected with the application before him; the appeal was otherwise dismissed, with each party bearing its own costs.

Key legal issues

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01

Whether the appellant satisfied the threshold for a conservatory order

Holding

The Judge did not reject the application for want of a prima facie case but because it was an abuse of process; the Court of Appeal could not fault that conclusion

Reasoning

The Judge applied the Giella criteria but also considered public interest per the Supreme Court in Munya. His overriding reasons were that relief could not rest on the speculative prospect of a future Land Commission determination and that the application amounted to a collateral attack on prior refusals of stay. The appellant had previously sought, unsuccessfully, to stay the same decree.

p. 7
02

Whether seeking stay of a decree in one suit via a different suit is permissible

Holding

It is impermissible; Section 34(1) of the Civil Procedure Act requires execution questions to be determined by the court executing the decree, not by separate suit

Reasoning

The appellant sought in Petition No. 13 of 2011 to stay execution of the decree in HCCC No. 367 of 2000. The Court held this route contravenes Section 34(1) of the Civil Procedure Act and that on those grounds alone the Judge was right in rejecting the application.

p. 8
03

Whether the matters raised in the petition were res judicata

Holding

The Court was not satisfied the matters were res judicata by reason of HCCC 367 of 2000 or Civil Appeal No. 149 of 2007, since legality of title was not litigated there

Reasoning

Applying the Uhuru Highway ingredients of res judicata, the Court noted the cause of action in HCCC 367 of 2000 was trespass; the question of revocation of title or unlawful alienation of public land was not raised or litigated in that suit or the appeal therefrom. Whether HCCC 35 of 2010 was rightly struck out as res judicata awaits Civil Appeal No. 325 of 2013.

p. 9
04

Validity of the Judge's order directing payment of Kshs. 37,567,717.00 to KRA

Holding

The order was set aside as it was unconnected with the application before the Judge and varied a decree in a suit not before him

Reasoning

Having dismissed the appellant's motion, the Judge went on to order part of the decretal sum to be held by KRA pending tax assessment. The Court held this exceeded the Judge's powers, being unconnected with the application and varying a decree in a suit not before him, and set it aside.

p. 9

Legal principles established

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  • Questions relating to execution, discharge or satisfaction of a decree must be determined by the court executing the decree, not by a separate suit
  • Public interest and constitutional values must be considered in applications for conservatory orders, beyond the Giella criteria
  • A trial judge who has dismissed an application cannot make orders unconnected with that application varying a decree in a suit not before him
  • The Court of Appeal interferes with judicial discretion of a lower court only where the decision is clearly wrong

Court orders

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  1. 1.Set aside the order directing that an amount of Kshs. 37,567,717.00 be paid to KRA from the decretal sum in HCCC 367 of 2000
  2. 2.Dismissed the appeal otherwise
  3. 3.Ordered that each party shall bear its own costs of the appeal

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 62
  • Constitution of Kenya, 2010Article 62(1)(h)
  • Constitution of Kenya, 2010Article 62(4)
  • Constitution of Kenya, 2010Article 67
  • Constitution of Kenya, 2010Article 68
  • Constitution of Kenya, 2010Article 40(6)
  • Civil Procedure Act, Cap 21Section 34(1)
  • Anti-Corruption and Economic Crimes Act, Act No. 3 of 2003Section 45(1)(d)
  • Income Tax ActSection 52(b)
  • Registration of Titles Act (now repealed)
  • National Land Commission Act

Cases cited (8)

  • Gatirau Peter Munya vs. Dickson Mwenda Kithinji & 2 others
    [2014] eKLR

    Conservatory orders bear a public-law connotation and should be granted on inherent merit bearing in mind public interest and constitutional values

  • Alfred N. Mutua vs. Ethics & Anti-Corruption Commission & 4 others
    [2016] eKLR

    Conservatory orders should be granted in public interest

  • Funzi Island Development Limited & 2 others vs. County Council of Kwale & 2 others
    [2014] eKLR

    Article 62(4) of the Constitution on alienation of public land

  • Kenya Hotel Properties Limited vs. Willisden Investments Limited & 4 others
    [2013] eKLR

    Prior ruling of this Court granting an injunction pending the hearing of this appeal

  • Uhuru Highway Development Ltd vs. Central Bank of Kenya & 2 others
    [1996] eKLR

    Ingredients of the principle of res judicata

  • Ukay Estate Ltd and another vs. Shah Hirji Manek Ltd and 2 others
    [2006] eKLR

    What amounts to res judicata

  • Mbogo and Another vs. Shah
    [1968] E A 93

    Circumstances in which an appellate court may interfere with exercise of judicial discretion

  • Giella vs Cassman Brown
    [1973] E. A. 358

    Criteria for grant of interlocutory injunctions

On appeal from
High Court of Kenya at Nairobi
Nairobi Petition No. 13 of 2011
Jurisdiction invoked
Appellate jurisdiction of the Court of Appeal over an appeal from a ruling of the High Court in a constitutional petition

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Kenya Hotel Properties Limited v Willesden Investments Limited & Kenya Revenue Authority", Case Analysis (2018). Civil Appeal No. 184 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/832/eng@2018-02-16

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