Catherine Wambui Kuria (Suing as the Personal Representative of the estate of Peter Kuria Munyuira v Housing Finance Company of Kenya Limited & another [2020] KECA 245 (KLR)
The bottom line
#The Court of Appeal refused to stop an eviction because the applicant could be compensated with money, showing that arguable appeals alone do not win emergency relief in Kenya.
What this practically means
#Executive summary
#Key legal issues
#The principles governing an application for an injunction pending appeal under Rule 5(2)(b)
The burden is on the applicant to show an arguable appeal without proving it will necessarily succeed, and further to prove that unless a stay or injunction is granted the intended appeal would be rendered nugatory.
The court restated the settled twin principles under Rule 5(2)(b). It accepted that the draft memorandum of appeal raised arguable issues on the service of the statutory notice and the auction. However, on the nugatory limb, the applicant had continued in occupation and collecting rent, and any prejudice could be compensated by damages, so the appeal would not be rendered nugatory.
Whether the intended appeal would be rendered nugatory absent an injunction
The intended appeal would not be rendered nugatory because an award of damages would adequately compensate the applicant.
The court weighed the applicant's claim of likely eviction against the 2nd respondent's position as a bona fide purchaser for value who had been hindered from taking possession for 14 years while the applicant collected rent of Kshs. 150,000 per month. Finding damages an adequate remedy, the second limb failed and the application had to be dismissed.
Legal principles established
#- Under Rule 5(2)(b), an applicant must satisfy both limbs: an arguable appeal (without showing it must succeed) and that the appeal would be rendered nugatory absent the orders; failure on either limb is fatal
Court orders
#- 1.The application for an injunction pending the hearing and determination of the intended appeal is dismissed with costs
- On appeal from
- High Court
- HCCC No. 457 of 2006
- 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, "Catherine Wambui Kuria (Suing as the Personal Representative of the estate of Peter Kuria Munyuira v Housing Finance Company of Kenya Limited & another [2020] KECA 245 (KLR)", Case Analysis (2020). Civil Application No. 32 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/245/eng@2020-10-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.