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Court of AppealDismissedCivil Appeal No. 162 of 2020· [2020] KECA 105 (KLR)

Tom Owiny v Patel Ravji Lalji & another [2020] KECA 105 (KLR)

Court of Appeal
4 December 2020
1,504 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to halt a property injunction, confirming that a stay applicant must win on two tests, not just one.

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 (Koome, Okwengu and Kiage, JJ.A) delivered on 4th December 2020 in an application by Tom Owiny for stay of a ruling and order of Okongo, J. of the Environment and Land Court (ELC Case No. 114 of 2019) dated 18th May 2020. The respondents had sued the applicant claiming they purchased the suit premises, LR No. 209/11309, for Kshs. 50 million, took possession and developed infrastructure worth some Kshs. 300 million, but were disrupted when the applicant allegedly trespassed with goons in March 2019. The applicant contended he received only Kshs. 30 million of the purchase price, rescinded the sale agreement, and that the transfer was only to assist the respondents obtain a loan. The High Court granted the respondents an interlocutory injunction restraining trespass and preserving the property pending trial. Invoking Rule 5(2)(b) of the Court of Appeal Rules, the applicant sought stay pending an intended appeal, arguing the Judge made conclusive findings at an interlocutory stage. The Court of Appeal applied the settled twin-limb test: the applicant established arguability on whether the full purchase price was paid and the remedy available, but failed the nugatory limb because the Judge's preservation order protected both parties and was advantageous, not prejudicial, to the applicant. The court declined to disturb the exercise of the Judge's discretion, citing Mbogo v Shah, and dismissed the application with costs to the respondents.

Key legal issues

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01

The test for stay under Rule 5(2)(b) of the Court of Appeal Rules

Holding

The applicant must establish both that the intended appeal is arguable and that it would be rendered nugatory absent a stay; both limbs must be satisfied

Reasoning

The court restated the classic test from Trust Bank Limited vs Investech Bank Ltd: jurisdiction under Rule 5(2)(b) is original and discretionary, and the applicant must show a first that the appeal or intended appeal is not frivolous and secondly that a stay is needed to prevent the appeal being rendered nugatory. Both limbs are assessed against the facts and circumstances of each case.

p. 2
02

Arguability of the intended appeal

Holding

The intended appeal was arguable on the questions whether the respondents paid the full purchase price and what remedy flows from non-payment, but arguability alone is insufficient

Reasoning

The court found the contested issues of payment of the balance of the purchase price and the effect of non-payment raised serious questions deserving consideration. However, applying the caution from Dennis Mogambi Mang'are, an arguable appeal is not one that must necessarily succeed; the applicant still had to satisfy the second, nugatory limb.

p. 2
03

Whether the intended appeal would be rendered nugatory

Holding

The appeal would not be rendered nugatory because the Judge's order preserving the suit premises pending trial protected both parties and was not prejudicial to the applicant

Reasoning

The court noted that although the respondents were in possession, they were restrained from selling, transferring or altering the suit premises until trial. That preservation order was advantageous to the applicant and not prejudicial to his rights pending appeal. Having failed the nugatory limb, the application could not succeed.

p. 2

Legal principles established

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  • An applicant under Rule 5(2)(b) must satisfy the twin limbs of arguability and nugatory aspect; failure of either limb is fatal to the application
  • An arguable appeal need not necessarily succeed; it is enough that it raises a serious question of law or a reasonable argument deserving consideration
  • An appellate court will not interfere with a judge's exercise of discretion unless the judge misdirected himself or the decision is clearly wrong and results in injustice

Court orders

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  1. 1.The application for stay of the ruling and order of Okongo, J. dated 18th May 2020 is dismissed
  2. 2.Costs of the application awarded to the respondents

Authorities

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Legislation

  • Court of Appeal RulesRule 5(2)(b)

Cases cited (3)

  • Trust Bank Limited and Anor vs. Investech Bank Ltd & 3 Ors
    Civil Application Nos. NAI 258 & 315 of 1999 (Unreported)
  • Mbogo vs. Shah
    [1968] E.A. 93
  • Dennis Mogambi Mang'are vs. Attorney General & 3 Others
    Civil Application No. NAI 265 of 2011 (UR 175/2011)
On appeal from
Environment and Land Court
ELC Case No. 114 of 2019
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules (application for stay of the ruling and orders of the High Court pending the 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 (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, "Tom Owiny v Patel Ravji Lalji & another [2020] KECA 105 (KLR)", Case Analysis (2020). Civil Appeal No. 162 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/105/eng@2020-12-04

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