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Court of AppealAllowedCivil Application No. NAI 329 of 2018 (UR 266 of 2018)· [2019] KECA 714 (KLR)

Regnoil Kenya Limited v Winfred Njeri Karanja [2019] KECA 714 (KLR)

Court of Appeal of Kenya
10 May 2019
William OukoW. OukoAMA.K. MurgorSKS. ole Kantai
2,291 words in judgment
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The bottom line

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Kenya's Court of Appeal froze a High Court judgment on property possession, ruling one arguable appeal point is enough to get a stay.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Nairobi (Ouko (P), Murgor and Kantai, JJ.A.) on a notice of motion dated 12 November 2018 by Regnoil Kenya Limited seeking, under section 3A of the Appellate Jurisdiction Act and rule 5(2)(b) of the Court of Appeal Rules, a stay of execution of the High Court judgment of Makau, J dated 27 September 2018 in HCCC No. 595 of 2014, and of any further proceedings pursuant to it, pending an intended appeal. The underlying dispute concerned a sale agreement for Maisonette No. 262 at Diamond Park Estate, Nairobi, in which the High Court ordered the applicant to rectify defects and hand over the premises to the respondent, who had paid Kshs. 8,700,000 of the Kshs. 11,700,000 price and held registered title charged to Kenya Commercial Bank, while general damages of Kshs. 1,500,000 were also awarded and the applicant's counter-claim dismissed. Applying the twin tests under rule 5(2)(b), the court held that the 25 grounds raised, notably that general damages cannot be awarded for breach of contract and that orders were made on unpleaded matters, established that the intended appeal was arguable; a single arguable point suffices. On nugatory value, the court reasoned that handing over possession to the respondent, already the registered title holder, could allow her to dispose of the premises and remove the substratum of the appeal. The application was allowed as prayed, with costs of the application to abide the appeal.

Key legal issues

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01

Arguability of the intended appeal

Holding

The intended appeal was arguable: the grounds, including that general damages are not awardable for breach of contract and that orders were granted on unpleaded matters, were justifiable.

Reasoning

The applicant raised 25 grounds in the draft memorandum of appeal. Among them were that the High Court awarded general damages for breach of a sale agreement when general damages are not awardable in contract, that orders were issued on matters neither pleaded nor prayed, and that the counter-claim was dismissed inconsistently with granting the respondent an alternative prayer. The court found even one arguable point suffices and these complaints were justifiable grounds.

p. 3
02

Nugatory value of the intended appeal

Holding

Handing over possession to the respondent, already the registered title holder with a charge to KCB, could allow disposal of the premises and remove the substratum of the appeal.

Reasoning

The suit premises were registered in the respondent's name and charged to the Kenya Commercial Bank, while the applicant retained possession and claimed an unpaid balance of Kshs. 3,000,000. The court reasoned that if possession were handed over, nothing would preclude the respondent from disposing of the premises, removing the substratum of the appeal and rendering it nugatory were it to succeed. Preservation of the status quo pending appeal was in the parties' best interest.

p. 3

Legal principles established

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  • In an application under rule 5(2)(b), the Court of Appeal exercises original and discretionary jurisdiction, not appellate review of the judge's decision.
  • An applicant under rule 5(2)(b) must satisfy the twin tests: an arguable appeal and that the appeal would be rendered nugatory absent the orders sought.
  • A single arguable ground of appeal suffices to meet the arguability threshold.

Court orders

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  1. 1.Stay of execution of the judgment of Makau, J dated 27 September 2018 and the decree issued on 9 October 2018 in HCCC No. 595 of 2014 pending the hearing and determination of the intended appeal
  2. 2.Stay of any further proceedings pursuant to that judgment and decree pending the intended appeal
  3. 3.The prevailing circumstances to subsist pending the hearing and determination of the intended appeal
  4. 4.Costs of the application to abide the appeal

Authorities

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Legislation

  • Appellate Jurisdiction Actsection 3A
  • Court of Appeal Rulesrule 5(2)(b)

Cases cited (3)

  • Stanley Kang’ethe Kinyanjui vs Tony Keter & 5 Others
    Civil Application No. NAI. 31/2012
  • Ruben & Others vs Nderitu & Another
    [1989] KLR 459
  • Commissioner of Customs vs Anil Doshi
    [2007] eKLR
On appeal from
High Court of Kenya at Nairobi
HCCC No. 595 of 2014
Jurisdiction invoked
Section 3A of the Appellate Jurisdiction Act and Rule 5(2)(b) of the Court of Appeal Rules (application for stay of execution pending intended appeal)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (4)

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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, "Regnoil Kenya Limited v Winfred Njeri Karanja [2019] KECA 714 (KLR)", Case Analysis (2019). Civil Application No. NAI 329 of 2018 (UR 266 of 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/714/eng@2019-05-10

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