Kigondu & 6 others v Ali & another
The bottom line
#The Court of Appeal dismissed tenants' bid to stop eviction because their premises had already been demolished, making the request pointless.
What this practically means
#Executive summary
#Key legal issues
#Mootness of an injunction application where the subject premises have been demolished
The application was overtaken by events and otiose because the premises had been demolished and the applicants were no longer on the land, as deposed on oath and not controverted.
The 1st respondent deposed on oath that eviction was effected and structures demolished. Counsel for the 1st respondent confirmed at the plenary hearing that all structures were demolished and no applicants remained. The applicants' counsel conceded doors and windows had been removed and some tenants had left. Uncontroverted oath evidence established mootness.
Twin requirements under Rule 5(2)(b) for injunction pending appeal
Even assuming an arguable point existed, the applicants failed to demonstrate the nugatory aspect, and failure to establish either limb justifies dismissal.
The Court restated the settled test from Stanley Kangethe Kinyanjui v Tony Ketter: the applicant must show the appeal is arguable and that it would be rendered nugatory absent the orders. The applicants did not demonstrate the nugatory aspect, so the application failed even on merit.
Legal principles established
#- An applicant under Rule 5(2)(b) must demonstrate both arguability of the appeal and the nugatory aspect; failure to establish either limb warrants dismissal of the application.
- An arguable appeal is not one that will necessarily succeed but one that deserves consideration and determination by the Court.
Court orders
#- 1.Dismissal of the application dated 16th July 2021
- 2.Each party to bear its own costs
- On appeal from
- Environment and Land Court at Nairobi
- ELC Case No. 817 of 2014
- Jurisdiction invoked
- Sections 3A and 3B of the Appellate Jurisdiction Act, CAP 9 and Rule 5(2)(b) of the Court of Appeal Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kigondu & 6 others v Ali & another", Case Analysis (2022). Civil Application E253 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/459/eng@2022-03-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.