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Court of AppealDismissedCivil Application No. 80 of 2020· [2020] KECA 104 (KLR)

Phares Ndungú Chege & another v Linnet Wairimu Mukuha & 2 others [2020] KECA 104 (KLR)

Court of Appeal of Kenya
4 December 2020
FSF. SichaleJMJ. MohammedSKS. ole Kantai
1,566 words in judgment
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The bottom line

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The Court of Appeal refused to stop an eviction fight going ahead, ruling the tenants had no arguable appeal because their occupation was based on a tenancy.

What this practically means

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Executive summary

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This was a Notice of Motion dated 16th March 2020 brought by Phares Ndungú Chege and Gursharn Singh under Rules 5, 41 and 47 of the Court of Appeal Rules, 2020, seeking an injunction pending the hearing and determination of an intended appeal against the ruling of Ohungo, J of the Environment and Land Court at Nakuru dated 5th March 2020 in ELC Case No. 551 of 2016, which had dismissed their application for injunctive relief concerning NAIVASHA MUNICIPALITY BLOCK 6/117. The applicants asserted sole registered ownership since 2015 and feared eviction and distress. The respondents contended that the first applicant was a monthly rent-paying tenant since 2014, that his certificate of lease was fraudulently obtained, and that he was in rent arrears of Kshs. 1,050,000 with a history of multiple failed suits. Sichale, JA delivered the lead ruling, applying the Rule 5(2)(b) principles summarised in Stanley Kang'ethe Kinyanjui v Tony Keter & 5 Others. The court found the applicants had not demonstrated an arguable appeal capable of being rendered nugatory absent stay, noting their entry onto the premises was on a tenancy arrangement and that they had been paying rent, and that no prejudice would be occasioned absent the orders. Mohammed, JA concurred entirely; Kantai, JA, in a separate concurring ruling, found no arguable point in the intended appeal given the multiplicity of lost suits and unpaid rent, and did not consider the nugatory limb. The motion was disallowed with costs to the respondents. The decision below was not disturbed on appeal; only the interlocutory application was determined.

Key legal issues

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Whether the applicants satisfied the twin principles for an injunction pending appeal under Rule 5(2)(b)

Holding

The application failed because the applicants did not demonstrate an arguable appeal that could be rendered nugatory; their entry onto the premises was a tenancy arrangement and they had been paying rent, so no prejudice would arise absent the orders.

Reasoning

The court applied the guiding principles in Stanley Kang'ethe Kinyanjui v Tony Keter & 5 Others: an applicant must show an arguable appeal, meaning one that is not frivolous, and that the appeal would be rendered nugatory absent stay. The record showed the applicants had filed a multiplicity of suits and applications which they had lost, had been found to be tenants who should pay rent, and had not paid the rent or arrears. On that record no arguable point was discernible, and absent stay no prejudice would be occasioned to the applicants.

p. 2

Legal principles established

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  • An applicant under Rule 5(2)(b) must first demonstrate that the intended appeal is arguable (not frivolous) and, in addition, that it would be rendered nugatory absent stay; both limbs must be satisfied.
  • Where an applicant fails on the arguability limb of the Rule 5(2)(b) test, the court need not consider the nugatory limb.

Court orders

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  1. 1.The Notice of Motion dated 16th March, 2020 is disallowed
  2. 2.The respondents shall have the costs of this application

Authorities

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Legislation

  • Court of Appeal Rules, 2020Rule 5
  • Court of Appeal Rules, 2020Rule 5(2)(b)
  • Court of Appeal Rules, 2020Rule 41
  • Court of Appeal Rules, 2020Rule 47

Cases cited (2)

  • Stanley Kang’ethe Kinyanjui vs. Tony Keter & 5 Others
    [2013] eKLR
  • Giella v Cassman Brown & Company Limited
    [1973] EA 358
On appeal from
Environment and Land Court of Kenya at Nakuru
ELC Case No. 551 of 2016
Jurisdiction invoked
Rules 5, 41 and 47 of the Court of Appeal Rules, 2020 (injunction pending an intended appeal, i.e. a Rule 5(2)(b) application)

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, "Phares Ndungú Chege & another v Linnet Wairimu Mukuha & 2 others [2020] KECA 104 (KLR)", Case Analysis (2020). Civil Application No. 80 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/104/eng@2020-12-04

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