Rhino Valley Lodge Limited v Kenya Wildlife Services Limited [2021] KECA 872 (KLR)
The bottom line
#The Court of Appeal dismissed Rhino Valley Lodge's bid to halt eviction because it failed to show its appeal was arguable — largely by not attaching the decision it was challenging.
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 applicant satisfied the twin prerequisites for relief under rule 5(2)(b) of the Court of Appeal Rules - that the intended appeal is arguable and that the appeal would be rendered nugatory if stay is not granted
Key legal issues
#Whether the applicant demonstrated that the intended appeal against the order of 30th September 2020 is arguable
The application fails because the applicant attached neither the ruling, order or proceedings it intended to appeal against, nor a draft memorandum of appeal, leaving the court unable to assess arguability
The court noted that the applicant's grievance related to the judge's observation that an original signed copy of the ruling existed on the court file, yet the applicant failed to attach the relevant ruling, orders, proceedings or a draft memorandum of appeal. Without the decision of Sila Munyao, J to examine, the court could not discern whether the intended appeal was arguable and held the prerequisites for a rule 5(2)(b) application unsatisfied.
Whether the nugatory-prong of the rule 5(2)(b) test was satisfied
Having failed on the arguability threshold alone, the applicant necessarily failed to satisfy the prerequisites for relief and the motion was dismissed
The court applied the established twin test from Republic v Kenya Anti-Corruption Commission: arguability and nugatory effect. The court found the first limb unsatisfied because no decision or draft memorandum was before it. Having failed the prerequisites necessary for a rule 5(2)(b) application, the motion dated 4th March 2020 was held unmerited and dismissed with costs to the respondent.
Legal principles established
#- An applicant under rule 5(2)(b) must satisfy two conditions: that the appeal or intended appeal is arguable, and that the success of the appeal would be rendered nugatory if the application is dismissed.
- The discretion under rule 5(2)(b) is unfettered but must be exercised judicially.
- Where a party intends to appeal against a ruling and order, the court hearing a rule 5(2)(b) application must have the benefit of that decision to assess arguability; without the decision or a draft memorandum of appeal, arguability cannot be demonstrated.
Court orders
#- 1.The Notice of Motion dated 4th March 2020 is dismissed
- 2.Costs of the application to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Environment and Land Court at Mombasa
- Mombasa ELC Case No. 148 of 2019
- Jurisdiction invoked
- Section 3, 3A and B and rule 5(2)(b) of the Appellate Jurisdiction Act; Articles 25(c) and 50(1) of the Constitution of Kenya
Relief refused
#Stay of execution / injunctive orders restraining eviction of the applicant from the leased premises pending the hearing and determination of the intended appeal
The applicant failed to demonstrate that the intended appeal is arguable, having attached neither the ruling and orders it intends to appeal against nor a draft memorandum of appeal
Costs
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.
The Court exercises unfettered discretion which must be exercised judicially. The applicant needs to satisfy the Court that first, that the appeal or intended appeal is not frivolous, that is to say that it is an arguable appeal.
Without there having been a decision by Sila Munyao, J upon which we can rely to discern one way or the other whether the intended appeal is arguable, we are not satisfied that the applicant has adequately demonstrated that the intended appeal is arguable.
Since the applicant has failed to satisfy the prerequisites necessary for a rule 5 (2) (b) application, the motion dated 4th March 2020 is unmerited, and is dismissed with costs to the respondent. It is so ordered.
Issues in the judgment
#The ruling is internally inconsistent about the application date: it is described as the Notice of Motion dated 4th March 2020, yet the background indicates an application dated 15th August 2019 and an order under appeal of 30th September 2020, making a 4th March 2020 filing chronologically improbable
The heading names the respondent as 'Kenya Wildlife Services Limited' although the statutory body is ordinarily 'Kenya Wildlife Service'; the judgment itself uses 'Kenya Wildlife Services Limited' throughout
The rule cited for the twin test is attributed both to the Appellate Jurisdiction Act rules and described as 'this Court's rules', and the rent arrears figures differ (Kshs. 9,464,778 in the narrative versus Kshs. 9,764,774 in the ruling of 29th July 2020)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Rhino Valley Lodge Limited v Kenya Wildlife Services Limited [2021] KECA 872 (KLR)", Case Analysis (2021). Civil Application No. E005 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/872/eng@2021-03-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.