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Court of AppealAllowedCivil Application E006 of 2020· [2022] KECA 520 (KLR)

Mbaruk v Mwasi & 6 others

Court of Appeal
6 May 2022
SKS. Gatembu KairuPNP. NyamweyaJLJ. Lesiit
2,607 words in judgment
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The bottom line

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Kenya's Court of Appeal preserved a disputed Mombasa house pending appeal, ruling that challenges to a notice of appeal must follow Rule 84 procedure.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Mombasa (Kairu, Nyamweya and Lesiit, JJA) on a notice of motion dated 8th October 2020 by Mbaruk Ayub Ali Mbaruk seeking conservatory orders and an injunction pending the hearing and determination of his intended appeal against a ruling of the Environment and Land Court at Mombasa (Munyao, J.) delivered on 24th September 2020 in ELC Appeal No. 30 of 2018. The dispute concerns Plot No. 211 Section II Mainland North, sold to the applicant by the 1st to 6th respondents, who later rescinded the agreement for non-payment and resold to the 7th respondent. The ELC had set aside the Magistrate's dismissal of the applicant's suit and entered judgment for the respondents, and dismissed the applicant's application for review. The respondents objected to the competence of the notice of appeal by affidavit and submissions rather than a Rule 84 application. The court held that such a challenge must be brought by application under Rule 84 within the prescribed time and declined to fault the notice. On the twin Rule 5(2)(b) principles, the court found a single bona fide arguable point on whether the applicant had fully paid the purchase price, and found that dealings by the 7th respondent could alienate the house and destroy the substratum of the appeal. The application was allowed: the status quo as at the date of the ruling was to be maintained pending the intended appeal, with costs of the application abiding its outcome.

Key legal issues

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01

Procedure for challenging competence of a notice of appeal

Holding

The respondents' challenge was procedurally defective as no Rule 84 application or cross-application was filed; the court declined to fault the notice of appeal.

Reasoning

Rules 83 and 84 of the Court of Appeal Rules govern striking out notices of appeal and deem lapsed notices withdrawn. Rule 104(b) bars a respondent from raising competence objections without leave if they could have been raised under Rule 84. The court, following its own precedents, held that an oral or submissions-based challenge is impermissible and declined the invitation.

02

Arguability of the intended appeal

Holding

The intended appeal is arguable; the applicant demonstrated payment and possession, and the rescission and resale to the 7th respondent is a contested issue.

Reasoning

Both limbs of the Rule 5(2)(b) test must be demonstrated. On arguability, even one bona fide arguable ground suffices. The applicant's claim of full payment and possession, contrasted with the respondents' rescission and resale, raises a contested issue fit for ventilation on appeal; the appeal is not frivolous.

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Nugatory-ness and preservation of the suit property

Holding

The appeal would be rendered nugatory if the orders were not granted, since dealings with the house could alienate it beyond the applicant's reach and affect the substratum of the appeal.

Reasoning

Whether an appeal will be rendered nugatory depends on the circumstances of each case. The property had been transferred to the 7th respondent, who was in the process of transferring or developing it. As a house, any dealing may substantially affect the substratum of the appeal, justifying preservation of the status quo.

04

Whether the ruling of 24th September 2020 issued negative orders incapable of being stayed

Holding

The court did not decide this directly; it relied on authority that while striking out is a negative order incapable of being stayed, an application for injunction under Rule 5(2)(b) invokes the court's original jurisdiction and is properly before it.

Reasoning

The 1st to 6th respondents argued the ruling issued negative orders incapable of being stayed. The court adopted its ruling in County Secretary of Kajiado, which acknowledged the negative-order principle but held that an injunction sought under Rule 5(2)(b) is a preservation order within the court's original jurisdiction, so the application was properly seized.

p. 5

Legal principles established

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  • A challenge to the competence of a notice of appeal must be brought by application under Rule 84 of the Court of Appeal Rules within the prescribed time, not by oral submissions or affidavit.
  • A single bona fide arguable ground suffices on the arguability limb of Rule 5(2)(b), and an arguable appeal need not be one that must succeed.
  • On a Rule 5(2)(b) application the court exercises original jurisdiction as a court of first instance in granting preservation orders.

Court orders

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  1. 1.The Notice of Motion dated 8th October 2020 is allowed
  2. 2.The status quo obtaining at the date of the ruling to be maintained pending the hearing and determination of the applicant's intended appeal
  3. 3.Costs of the application to abide the outcome of the intended appeal

Authorities

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Legislation

  • Court of Appeal RulesRule 5(2)(b)
  • Court of Appeal RulesRule 83
  • Court of Appeal RulesRule 84
  • Court of Appeal RulesRule 104(b)
  • Appellate Jurisdiction Actsections 3A and 3B
  • Constitution of Kenya, 2010Article 159

Cases cited (10)

  • Kenindia Assurance Co. Ltd v Monica Moraa
    [2016] eKLR

    Rule 84 requires a competence challenge within thirty days of service of the notice or record of appeal; earliest opportunity.

  • Agricultural Development Corporation v Richard Kipkoech Aiyabei
    [2020] eKLR

    No provision permits faulting a notice of appeal orally or through submissions.

  • MM Butt vs. Rent Restriction Tribunal
    Civil Application No. 6 of 1979

    Principles applicable to Rule 5(2)(b) applications.

  • D. J. Lowe & Company vs Prime Bank Limited
    Mombasa HCC No. 235 of 2010

    Court's duty to ensure a successful appeal is not rendered nugatory.

  • Wilson vs Church (No. 2)
    12 Ch. 1 (1979), 454

    Court's duty to ensure a successful appeal is not rendered nugatory.

  • County Secretary of Kajiado & 47 others v Salaries & Remuneration Commission & another
    [2021] eKLR

    Negative orders incapable of being stayed, but injunction under Rule 5(2)(b) invokes original jurisdiction.

  • Daniel Lomagul Kandei & 2 Others v. Kamanga Holdings Limited & 40 Others
    (2017) eKLR

    Stay of striking out is a negative order incapable of being stayed.

  • Nairobi Metropolitan PSV Saccos Union and 25 Others Vs County Of Nairobi Government & 3 Others

    In granting stay or injunction orders the court exercises original jurisdiction.

  • Equity Bank Limited vs West Link Mbo Limited
    Ca No. Nai 78 of 2011

    Rule 5(2)(b) is a procedural innovation empowering preservation of the subject matter of appeals.

  • Reliance Bank Ltd vs. Norlake Investments Ltd
    [2002] 1 E. A. 227

    What may render an appeal's success nugatory must be considered in the circumstances of each case.

On appeal from
Environment and Land Court at Mombasa
ELC Appeal No. 30 of 2018
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules, sections 3A and 3B of the Appellate Jurisdiction Act and Article 159 of the Constitution of Kenya, 2010

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (5)

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

Cite this brief

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Cite this brief

Caselaw, "Mbaruk v Mwasi & 6 others", Case Analysis (2022). Civil Application E006 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/520/eng@2022-05-06

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