Company for Habitat and Housing in Africa (Shelter Afrique) v Sunset Paradise Apartments Limited [2020] KECA 195 (KLR)
The bottom line
#Kenya's Court of Appeal refused to save Shelter Afrique's spent injunction application, confirming courts cannot grant orders never formally requested in the application itself.
What this practically means
#Executive summary
#Key legal issues
#Whether the court may grant relief framed only in submissions after the prayers in the motion are overtaken by events
No. The court cannot grant prayers not sought in the application and will not issue omnibus open-ended orders; an application overtaken by events fails.
Counsel for the applicant conceded that the prayers in the notice of motion had been overtaken by events, and instead sought to rely on a new prayer for stay formulated in written submissions, anchored on a general 'any other order' prayer. Relying on the respondent's authorities, the court held that parties are bound by their pleadings, that the court cannot determine the 'justice of the case' from submissions alone, and that it is not in the business of granting omnibus open-ended orders such as prayer No. 4.
Whether the application satisfied the Rule 5(2)(b) threshold for an injunction or stay pending appeal
It did not; no material was placed before the court on either arguability or the nugatory aspect, and the application was dismissed.
Applying the Court of Appeal's own test as set out in Stanley Kang'ethe Kinyanjui v Tony Keter & 5 Others, the applicant had to demonstrate that the intended appeal was arguable and that unless relief was granted the appeal would be rendered nugatory. Apart from a cursory statement that the appeal was arguable, nothing was placed before the court supporting either limb of the test. The application was therefore plainly for dismissal, having also been overtaken by events.
Legal principles established
#- A court cannot grant orders that were not specifically prayed for in the application, and will not issue omnibus open-ended prayers
- A party cannot breathe life into a spent application by crafting a new prayer in written submissions; parties are bound by their pleadings
- An application under Rule 5(2)(b) must be supported by material demonstrating both arguability of the appeal and the nugatory aspect; a cursory assertion of arguability does not suffice
Court orders
#- 1.The application for injunction (Notice of Motion dated 12th February 2020) is dismissed
- 2.Costs of the application awarded to the respondent
- On appeal from
- High Court of Kenya at Mombasa
- HCCA No. 198 of 2018
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules (injunction/stay pending appeal)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Company for Habitat and Housing in Africa (Shelter Afrique) v Sunset Paradise Apartments Limited [2020] KECA 195 (KLR)", Case Analysis (2020). Civil Application No. NAI 34 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/195/eng@2020-11-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.