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 AppealPartially AllowedCivil Application E419 of 2021· [2022] KECA 618 (KLR)

Chogi's Garage Limited v Peers Oasis Park Holdings Limited & 2 others

Court of Appeal
28 April 2022
2,220 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

#

Kenya's Court of Appeal protected a Lavington property owner's grill and gate from demolition, ruling the appeal would be pointless if the structure was removed first.

What this practically means

#

Executive summary

#
This is a ruling of the Court of Appeal at Nairobi (Okwengu, Mbogholi-Msagha and Laibuta, JJA) on a Notice of Motion dated 26th November 2021 brought under Rule 5(2)(b) of the Court of Appeal Rules by Chogi's Garage Limited, seeking stay of further proceedings and a temporary injunction restraining the respondents from removing a grill and gate erected at the backyard of Apartment B1 on LR No. 330/1342, Lavington, pending the hearing of its intended appeal against a ruling of Oguttu Mboya, J. of the Environment and Land Court delivered on 29th September 2021. The dispute arises from the respondents' position that the applicant's gate and grill interfered with common areas, and their threats of demolition. The court applied the settled twin principles: the appeal must be arguable, and if successful would be rendered nugatory absent stay. It found the draft grounds arguable, raising the interpretation of the lease, the controversy over common areas, and the imminent removal of the grill and gate. On the second limb, it held that demolition would condemn the applicant unheard and cause loss not compensable in damages. The court allowed the motion, restrained the respondents from removing the grill and gate pending the appeal, and ordered costs of the application to be costs in the intended appeal. The decision binds subordinate courts and the ELC on the application of the Rule 5(2)(b) twin test.

Key legal issues

#
01

Whether the intended appeal is arguable

Holding

The appeal was arguable because it raised contested issues on the lease terms, common areas, and the imminent removal of the grill and gate.

Reasoning

The court read the grounds of the motion, the supporting and replying affidavits and the submissions, and identified three live controversies: interpretation of the lease, the undetermined question of what constitutes common areas, and the imminent demolition of the grill and gate. These grounds were not idle, satisfying the first limb of the twin principle.

p. 4
02

Whether the appeal would be rendered nugatory absent stay

Holding

Removal of the grill and gate would condemn the applicant unheard and cause loss not compensable by damages, rendering the appeal nugatory.

Reasoning

The court reasoned that demolition would constitute the disputed area a common area accessible to all residents, shutting the applicant out from the course of justice and condemning them unheard on the merits. The resulting exposure and substantial loss could not be undone were the appeal to succeed, and damages would not compensate.

p. 4

Legal principles established

#
  • An applicant under Rule 5(2)(b) must show the appeal is arguable and that it would be rendered nugatory absent stay.
  • One arguable point suffices; the applicant need not show the point will succeed.
  • Nugatory means not only worthless, futile or invalid, but also trifling, and is assessed case by case.

Court orders

#
  1. 1.the applicant's Notice of Motion dated 26th October 2021 is hereby allowed in terms of (b) and (c) below
  2. 2.the respondents are hereby restrained from removing the grill and gate at the applicant's backyard on apartment B1 erected on LR No. 330/1342 situate along Gitanga Close in the Lavington area of Nairobi pending hearing and determination of the applicant's appeal
  3. 3.the costs of this application be costs in the intended appeal

Authorities

#

Legislation

  • Court of Appeal RulesRule 5(2)(b)

Cases cited (4)

  • Giella v Cassman Brown & Co. Ltd
    [1973] E.A. 358

    Cardinal principle of preservation of the subject matter of the suit and maintenance of the status quo, cited in the grounds of appeal.

  • Anne Wanjiku Kibeh v Clement Kungu Waibara and IEBC
    [2020] eKLR

    Applicants must show the appeal is arguable and that it would be rendered nugatory absent stay.

  • Yellow Horse Inns Limited v A. A. Kawir Transporters & 4 Others
    [2014] eKLR

    One arguable point suffices; the applicant need not show the arguable point will succeed.

  • Reliance Bank Ltd v Norlake Investments Ltd
    (2002) 1 EA p.227

    Definition of 'nugatory' - not only worthless, futile or invalid, but also trifling; assessed case by case.

On appeal from
Environment and Land Court at Nairobi
Environment and Land Court Civil Appeal No. E022 of 2021
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Chogi's Garage Limited v Peers Oasis Park Holdings Limited & 2 others", Case Analysis (2022). Civil Application E419 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/618/eng@2022-04-28

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