Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealDismissedCivil Application E253 of 2021· [2022] KECA 459 (KLR)

Kigondu & 6 others v Ali & another

Court of Appeal
18 March 2022
1,256 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

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

#
The applicants, long-standing tenants on two Nairobi properties leased by the 1st respondent from Nairobi City County, sought an injunction under Rule 5(2)(b) of the Court of Appeal Rules restraining their eviction pending an intended appeal against the ELC judgment of Bor, J. dated 9th October 2018, which allowed the 1st respondent's claim, dismissed the 7th applicant's counterclaim, and ordered their eviction. Warrants of eviction were issued on 14th June 2021 and eviction was effected. At the plenary hearing, counsel for the 1st respondent confirmed all structures had been demolished and no applicants remained on the properties; counsel for the applicants conceded doors and windows had been removed and some tenants had left. The Court held the application had been overtaken by events and was otiose, resting on uncontroverted oath evidence of demolition. In the alternative, even assuming the appeal had an arguable point as defined in Stanley Kangethe Kinyanjui v Tony Ketter, the applicants failed to demonstrate the nugatory aspect, one of the twin requirements under Rule 5(2)(b). The Court dismissed the application but, mindful of the disparity in financial standing between the parties, ordered each party to bear its own costs. The intended appeal against the eviction judgment remains pending; this ruling does not disturb the decision below.

Key legal issues

#
01

Mootness of an injunction application where the subject premises have been demolished

Holding

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.

Reasoning

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.

p. 3
02

Twin requirements under Rule 5(2)(b) for injunction pending appeal

Holding

Even assuming an arguable point existed, the applicants failed to demonstrate the nugatory aspect, and failure to establish either limb justifies dismissal.

Reasoning

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.

p. 3

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. 1.Dismissal of the application dated 16th July 2021
  2. 2.Each party to bear its own costs

Authorities

#

Legislation

  • Appellate Jurisdiction Act, CAP 9 Laws of KenyaSection 3A
  • Appellate Jurisdiction Act, CAP 9 Laws of KenyaSection 3B
  • Court of Appeal Rules, 2010Rule 5(2)(b)

Cases cited (1)

  • Stanley Kangethe Kinyanjui vs Tony Ketter & 5 Others
    [2013] eKLR

    Definition of an arguable appeal under Rule 5(2)(b) - one deserving consideration, not necessarily one that will succeed

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.