Devika Shaileshkumar Patel & 2 others v Shilpan Patel (Suing as the Executor of the Estate of Nataverbhai Prabhai Vallabhai Patel) & another [2019] KECA 424 (KLR)
The bottom line
#The Court of Appeal refused to stop a land case from proceeding, ruling the appeal was frivolous and courts will not pause cases over reversible interim orders.
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 against the trial court's directions of 1st November 2018 is arguable
- 2.Whether, if the ruling and proceedings before the trial court are not stayed, the intended appeal would be rendered nugatory
- 3.Whether leave was required to appeal the directions given by the trial court
Key legal issues
#Arguability of the intended appeal
Once the certified record showed leave to file the further affidavit had been granted on 12th July 2018, the sole ground of the intended appeal dissipated and the appeal was frivolous
The applicants' only complaint was that the affidavit of Ushma Patel was admitted without leave. The certified, unchallenged proceedings showed Devki herself sought and obtained leave on 12th July 2018, and that the record relied on by the applicants had been erroneously transcribed and properly rectified. With the factual premise gone, the intended appeal was largely frivolous.
Nugatory-ness
Even assuming arguability, staying the ruling or the proceedings would not render the intended appeal nugatory because the injunction orders would be reversible
The court held that orders made in the pending injunction ruling would be reversible if a proper basis for challenge is laid. Neither court could make final findings of fact or law; the parties would still have their evidence tested in cross-examination, and the number of affidavits filed would not determine the final decision, which rests on hard evidence.
Whether the directions of 1st November 2018 amounted to a decision attracting a right of appeal without leave
The court noted the objection that only directions, not a substantive decision, were given, making leave to appeal necessary, but did not make a definitive finding since the application failed on both Rule 5(2)(b) limbs
Counsel for Shilpan argued that no substantive decision was made, only directions, so Order 43 rule 1(j) CPR was inapplicable and leave was required. The court flagged the issue but resolved the application on the twin principles without making definitive findings, consistent with its own stated reluctance to make final findings at that stage.
Legal principles established
#- An applicant under Rule 5(2)(b) must satisfy both twin principles - arguability and nugatory-ness - and an order that is reversible cannot render an appeal nugatory
- Neither the trial court on an injunction application nor the Court of Appeal on a Rule 5(2)(b) application may make definitive or final findings of fact or law at that stage
Court orders
#- 1.The application is dismissed
- 2.Costs of the application awarded to the respondents (1st respondent)
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Environment and Land Court
- ELC No. 721 of 2017
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules (injunctive relief pending intended appeal)
Relief refused
#Order barring the trial court from delivering its ruling on the 1st respondent's application dated 22nd November 2017
The intended appeal was frivolous, the certified record showed leave to file the further affidavit had in fact been granted, and the trial court's orders would be reversible
Stay of further proceedings in Nairobi ELC No. 721 of 2017
The nugatory limb failed; expeditious hearing on merits was in the parties' interests
Costs
The application be and is hereby dismissed with costs (costs to the 1st respondent)
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.
With that rectification, the applicants' main reason for the intended appeal dissipates. We would on that basis alone find that the intended appeal is largely frivolous and that the applicant has not surmounted the first principle.
In our view, any orders given by the trial court in the pending ruling are reversible, so long as a proper basis is laid for their challenge.
The upshot is that the application lacks in merit and we order that it be and is hereby dismissed with costs.
Issues in the judgment
#The judgment contains two conflicting versions of the trial court's order of 12th July 2018 - one referring to 'the plaintiff/applicant' and one to 'the defendant/applicant' being granted leave to file a further affidavit
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Devika Shaileshkumar Patel & 2 others v Shilpan Patel (Suing as the Executor of the Estate of Nataverbhai Prabhai Vallabhai Patel) & another [2019] KECA 424 (KLR)", Case Analysis (2019). Civil Application Nai. 28 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/424/eng@2019-08-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.