Lata Suresh Madhyan v Wema Transporters Limited & 4 others
The bottom line
#Kenya's Court of Appeal stopped a homeowner's eviction until her appeal is heard, but only if she files the appeal record within 45 days.
What this practically means
#Executive summary
#Key legal issues
#Arguability of the intended appeal
An intended appeal challenging the grant of a mandatory injunction without a full inter partes hearing is arguable, resting on the applicant's right to be heard.
The applicant's grievance was that the trial court granted a mandatory injunction without giving her an opportunity to present her case in full. The court held that if that were so, it engages the applicant's inalienable right to be heard, and that determination is for the bench hearing the appeal; on that basis the appeal was found arguable.
Nugatory value of the intended appeal
Where the applicant remains in possession but faces eviction, refusal of stay followed by a successful appeal would render the appeal nugatory.
The suit premises had been sold and transferred to the 4th and 5th respondents, but the applicant remained in possession. The court reasoned that if she were evicted and the appeal later succeeded, there would be every chance the appeal would be rendered nugatory, satisfying the second threshold.
Legal principles established
#- An application under rule 5(2)(b) of the Court of Appeal Rules succeeds only where the applicant demonstrates an arguable appeal and that the appeal would be rendered nugatory if stay is refused.
Court orders
#- 1.Stay of execution of the ruling of Mativo J. dated 2nd June 2021 in HC (Commercial and Tax Division) No. 319 of 2019 granted on condition that the applicant files and serves the record of appeal within 45 days, failing which the stay lapses automatically
- 2.Costs to abide the outcome of the appeal
- On appeal from
- High Court of Kenya, Commercial and Tax Division
- HC (Commercial and Tax Division) No. 319 of 2019
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Lata Suresh Madhyan v Wema Transporters Limited & 4 others", Case Analysis (2021). Civil Application No. E044 of 2021 (Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/189/eng@2021-11-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.