Maccu Motors Ltd v Bikhabhai Mathurbhai Patel & 2 others [2021] KECA 454 (KLR)
The bottom line
#The Court of Appeal refused to stop execution of a land possession decree because the applicant never showed what its appeal would actually argue.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Court's jurisdiction under Rule 5(2)(b) was properly invoked by lodgment of a notice of appeal in accordance with Rule 75
- 2.Whether the Court has mandate to grant prayer 3 (an order of inhibition) under Rule 5(2)(b)
- 3.Whether the intended appeal is arguable
- 4.Whether the appeal would be rendered nugatory if stay is not granted
Key legal issues
#Invocation of the Court's jurisdiction under Rule 5(2)(b)
Jurisdiction was properly invoked because a notice of appeal dated 6th June 2019 and lodged on 7th June 2019 was on record.
The Court treated proper lodgment of a notice of appeal under Rule 75 as a jurisdictional precondition to entertaining a Rule 5(2)(b) application, following Githunguri v Jimba Credit Corporation Ltd No. 2. Since the notice of appeal filed on 6th June 2019 by the applicant's advocates was on record, the application was properly anchored and merited interrogation on its merits.
Availability of an order of inhibition under Rule 5(2)(b)
The Court has no mandate under Rule 5(2)(b) to grant an order of inhibition; prayer 3 was struck out.
Relying on Stanbic Bank Limited v Kenya Revenue Authority, the Court held that Rule 5(2)(b) confers power to grant only three reliefs: stay of execution, stay of further proceedings, and an injunction. An order of inhibition over the suit property is not one of them, so the Court lacked jurisdiction to grant it and struck out that prayer.
Whether the intended appeal was arguable
The arguability prerequisite was not satisfied because the application and supporting affidavit contained no particulars of the grievances intended to be pursued on appeal.
The Court examined grounds (a) and (b) on the body of the application and paragraphs 4 and 12 of the supporting affidavit, and found they amounted only to bare assertions that the appeal was arguable and timeously filed, without a draft memorandum or any specification of the intended grounds. Without such particulars the Court could not gauge arguability, and the first prerequisite failed.
Whether the nugatory-prerequisite needed consideration
Having failed on arguability, the Court declined to interrogate whether the appeal would be rendered nugatory.
Both prerequisites under Rule 5(2)(b) are cumulative and must be established. Because the applicant failed to satisfy the first prerequisite of arguability, the Court found it unnecessary to assess the second, nugatory-ness, and dismissed the application. The respondents' contention that the applicant had previously moved the Court twice unsuccessfully on the same subject was noted but the dismissal rested on the arguability failure.
Legal principles established
#- The Court of Appeal's jurisdiction under Rule 5(2)(b) arises only where a notice of appeal has been lodged in accordance with Rule 75 of the Court of Appeal Rules.
- Under Rule 5(2)(b) the Court may grant only three reliefs: stay of execution, stay of further proceedings, or an injunction; no other relief (such as inhibition) lies under that rule.
- An applicant under Rule 5(2)(b) must satisfy twin prerequisites: an arguable intended appeal and that the appeal will be rendered nugatory if relief is not granted; both must be established.
- Arguability must be demonstrated either by exhibiting a draft memorandum of appeal or by setting out the grievances intended to be taken on appeal in the application or supporting affidavit; bare assertions that an appeal is arguable do not suffice.
Court orders
#- 1.Prayer 3 of the application (order of inhibition) struck out
- 2.The application dismissed with costs to the respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Environment and Land Court of Kenya
- Meru ELC No. 31 of 2018
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules
Relief refused
#Stay of execution of the decree pending hearing and determination of the appeal
The applicant failed to demonstrate that the intended appeal is arguable, having set out no particulars of the grievances intended to be taken on appeal; both prerequisites under Rule 5(2)(b) must be satisfied
Order of inhibition upon land reference No. Meru Municipality Block II/50
Under Rule 5(2)(b) the Court has mandate to grant only a stay of execution, a stay of further proceedings, or an injunction; an order of inhibition is not among the reliefs available
Costs
The application was dismissed with costs to the respondent.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In the result, the application fails and is accordingly dismissed with costs to the respondent.
In light of the above crystallized position, we hold that there is no mandate for us to grant prayer 3. It is accordingly struck out.
The position in law is that both prerequisites must be established before a party can be granted relief under Rule 5(2)(b) of the Court of Appeal Rules.
Our take on the above is that these do not contain particulars of grievances appellant intends to take on appeal. We are, therefore in the circumstances, not in a position to gauge the arguability of the intended appeal.
Issues in the judgment
#The coram states the Court of Appeal at Nyeri, but the judgment is dated and delivered at Nairobi.
The quoted Githunguri passage refers to lodgment under rule 74, described as 'now Rule 75(1) and (2)', but the application and the Court's analysis proceed under Rule 75 generally; the internal numbering is transitional rather than contradictory.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Maccu Motors Ltd v Bikhabhai Mathurbhai Patel & 2 others [2021] KECA 454 (KLR)", Case Analysis (2021). Civil Application No. 191 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/454/eng@2021-07-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.