Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealDismissedCourt of Appeal Application dated 9th April 2021 (arising from ELC No. 1035 of 2016)· [2022] KECA 55 (KLR)

Simandi Investments Limited v Macharia & 2 others (Civil Application E104 of 2021) [2022] KECA 55 (KLR)

Court of Appeal of Kenya
4 February 2022
Mohamed Abdulahi WarsameM. WarsameASAsike-MakhandiaHOH. A. Omondi
1,681 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

#

The Court of Appeal refused to freeze half of a land compensation payout because the applicant failed to show its intended appeal was genuinely arguable.

What this practically means

#

Executive summary

#
This was an interlocutory application under Rule 5(2)(b) of the Court of Appeal Rules 2010 and Sections 3A and 3B of the Appellate Jurisdiction Act, in which the applicant sought a stay of execution and injunctions restraining the release of half the compensation for the compulsory acquisition of LR No. 209/11293/1 to the 1st respondent, pending an intended appeal against a ruling of Hon. S. Okong'o delivered on 4th March 2021 in ELC No. 1035 of 2016. The trial ruling directed the Kenya National Highway Authority to withhold half of the compensation and pay out the other half, even though the rival titles had not been determined at trial. The Court of Appeal (Warsame, Asike-Makhandia and Omondi JJA) restated the twin principles governing Rule 5(2)(b) applications - an arguable appeal and nugatory-ness - relying on established Supreme Court and Court of Appeal authorities. It found that although the memorandum of appeal raised issues, the learned judge had merely exercised his discretion in giving administrative directions, which an appellate court will not disturb absent capriciousness; the intended appeal was therefore not arguable. With the first principle failed, the nugatory inquiry was superfluous. The application was dismissed with costs ordered to abide the appeal. The judgment is a single judgment of the full bench with no separate opinions. Its binding value lies in its restatement of the Rule 5(2)(b) twin principles and the deference owed to administrative directions of trial judges.

Key legal issues

#
01

Arguability of the intended appeal

Holding

The appeal was not arguable; the learned judge had merely exercised his discretion in giving administrative directions which the Court would not interfere with absent capriciousness.

Reasoning

The Court perused the impugned ruling and found the trial judge had not validated any title and had preserved the status quo. The memorandum of appeal raised the premature award of half compensation, but the Court viewed the judge's orders as administrative directions and held that where such a decision is not exercised capriciously there is no basis for interference.

p. 3
02

Nugatory-ness of the appeal

Holding

Having found the substantive prayers unaddressed by the trial court, the nugatory issue was superfluous and could not stand.

Reasoning

The Court noted the trial judge had himself acknowledged that if compensation were paid, the substratum of the suit would be lost. However, because the first principle failed and the substantive prayers had not been dealt with below, the nugatory inquiry had no leg on which to stand.

p. 4

Legal principles established

#
  • To succeed under Rule 5(2)(b) an applicant must establish both twin principles: an arguable appeal and that the appeal will be rendered nugatory if the orders are not granted.
  • An arguable appeal need not be one that will succeed; a single bona fide arguable ground suffices, but it must not be frivolous.
  • Nugatory-ness depends on whether what is sought to be stayed is reversible or whether damages will reasonably compensate the aggrieved party, assessed on the facts of each case.
  • Rule 5(2)(b) is essentially a preservation tool safeguarding the substratum of the appeal, derived from Article 164(3) of the Constitution.

Court orders

#
  1. 1.The application dated 9th April 2021 is dismissed
  2. 2.The costs of the application shall abide the appeal
On appeal from
Environment and Land Court
ELC No. 1035 of 2016
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules 2010, Sections 3A and 3B of the Appellate Jurisdiction Act

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (2)

#

Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

#

Cite this brief

Caselaw, "Simandi Investments Limited v Macharia & 2 others (Civil Application E104 of 2021) [2022] KECA 55 (KLR)", Case Analysis (2022). Court of Appeal Application dated 9th April 2021 (arising from ELC No. 1035 of 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/55/eng@2022-02-04

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.