Maisha Investments Limited v Mohamed Hassanali & 2 others [2021] KECA 418 (KLR)
The bottom line
#Kenya's Court of Appeal froze the sale of disputed land, ruling that a paid deposit can make even an unsigned agreement arguable enough to protect pending appeal.
What this practically means
#Executive summary
#Key legal issues
#Arguability of the intended appeal
The limb of arguability was satisfied because it is arguable whether a contract came into existence where the Respondents forwarded an unexecuted agreement that led to payment of a 10% deposit.
The court found it arguable that a contract had come into existence despite the agreement not being executed by all parties, since the forwarded agreement led to the payment of 10% of the purchase price, and whether the exchange of an intended agreement that precipitated the deposit binds the parties. A single bona fide arguable ground suffices; the court made no definitive findings.
Whether the appeal would be rendered nugatory absent an injunction
The nugatory limb was satisfied because the suit property is land and the Respondents were in the process of selling it to another buyer, which would place it beyond the Applicant's reach.
The subject matter of the suit is land, and the court was told the Respondents were in the process of selling it to another buyer. If the Respondents proceeded to sell, the property would be outside the reach of the Applicant, rendering the appeal nugatory. Both limbs being satisfied, the motion was allowed.
Legal principles established
#- On an application under Rule 5(2)(b), the applicant must satisfy both twin principles of arguability and that the appeal would otherwise be rendered nugatory; a single bona fide arguable ground suffices, and the court must not make definitive or final findings of fact or law at that stage.
Court orders
#- 1.An order of injunction issued restraining the Respondents jointly and severally, whether by themselves or through their agents, servants, employees or any person claiming through or under them, from wasting, damaging, charging, encumbering, alienating, selling, removing, transferring, conveying or disposing of land reference number 1338/29 (original number 1338/4/10) pending the hearing and determination of the appeal
- 2.Costs of the motion to abide the outcome of the appeal
- On appeal from
- High Court of Kenya at Nairobi
- ELC No. 208 of 2014
- Jurisdiction invoked
- Rule 5(2)(b) and Rule 41 of the Court of Appeal Rules, 2010; Order 40 Rule 1 and Order 42 Rule 6(1) of the Civil Procedure Rules; Sections 1A, 1B and 3A of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Maisha Investments Limited v Mohamed Hassanali & 2 others [2021] KECA 418 (KLR)", Case Analysis (2021). Civil Appeal (Application) No. E433 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/418/eng@2021-07-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.