Benson Mutura v County Secretary County Government of Nairobi & 3 others; Mariakani Estate Welfare Association & another (Interested Parties) [2020] KECA 466 (KLR)
The bottom line
#Kenya's Court of Appeal refused to block LAPFUND from taking over Mariakani Estate because the appeal raised issues that had already been settled in earlier litigation.
What this practically means
#Executive summary
#Key legal issues
#Arguability of the intended appeal
The intended appeal is not arguable because the injunction and escrow issues now raised were not determined in the petition under appeal, having been dealt with in ELC No. 218 of 2015 and compromised by consent including the applicant
The petition was dismissed as res judicata; the High Court never addressed the injunction or deposit-of-rent issues. Those issues were resolved by consent in ELC No. 218 of 2015, to which the applicant was a party through the 1st Interested Party, and an application to set aside that consent had been dismissed. Seeking those orders on appeal would circumvent the dismissal.
Nugatory aspect of the intended appeal
Having failed on arguability, the court did not determine the nugatory limb, noting that the property could be retransferred if the appeal succeeded
The twin test under Rule 5(2)(b) requires both arguability and the nugatory aspect. Once the first limb fails, the second need not be addressed. The court observed that a successful appeal would not be futile since the property could always be retransferred to the 4th respondent.
Legal principles established
#- An applicant under Rule 5(2)(b) must demonstrate that the appeal is arguable and that it will be rendered nugatory if stay/injunction is not granted; a single arguable point suffices
- An applicant need not establish a multiplicity of arguable points; one will suffice
- An appeal on issues not determined by the decision appealed from, which were compromised by consent in prior litigation, is not arguable
Court orders
#- 1.The application is dismissed
- 2.No order as to costs, the application having not been defended
- On appeal from
- High Court of Kenya at Nairobi
- HC Petition No. 199 of 2018
- Jurisdiction invoked
- Rule 5(2)(b) Court of Appeal Rules (application for injunction pending an intended appeal)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Benson Mutura v County Secretary County Government of Nairobi & 3 others; Mariakani Estate Welfare Association & another (Interested Parties) [2020] KECA 466 (KLR)", Case Analysis (2020). Civil Application No. 114 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/466/eng@2020-08-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.