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Court of AppealAllowedCivil Application 317 of 2019· [2022] KECA 633 (KLR)

Kanwal Sarjit Singh Dhiman v Keshavji Jivraj Shah

Court of Appeal
8 July 2022
HOHannah OkwenguMAM. S. Asike-MakhandiaSKS. ole Kantai
1,544 words in judgment
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The bottom line

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Kenya's Court of Appeal stopped an eviction, confirming you can get a stay if your appeal raises serious points and losing possession would make the appeal pointless.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Nairobi (Okwengu, Asike-Makhandia and ole Kantai, JJA) on a Motion under rule 5 of the Court of Appeal Rules seeking stay of execution of a High Court judgment (Makau, J., 19 September 2019, H.C.C.C. No. 205 of 1999) pending an intended appeal. The underlying dispute arose from a 1996 loan agreement of KSh.13,000,000 at 36% interest secured by L.R. No. 209/8192/8 Lavington, Nairobi. After a convoluted history including an ex parte judgment set aside on appeal in 2013, the restored suit was decided in favour of the respondent: his claim was allowed, the counterclaim dismissed, the property declared to belong to the respondent, and the applicant ordered to give vacant possession within 60 days. Applying the settled twin principles - arguability and nugatory effect - the Court found the draft grounds (on the continued force of the vesting order and the enforceability of the agreement despite material deviation) arguable, and found the appeal would be rendered nugatory since the applicant could be evicted and the property transferred to a third party. The Motion was allowed, with the stay conditional on the appeal being filed and determined within one year, and costs in the appeal. The respondent's preliminary objection was not addressed as his counsel did not appear at the hearing.

Key legal issues

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01

Whether the intended appeal is arguable

Holding

The intended appeal was arguable; grounds on the enforceability of the agreement and the continued force of the vesting order were not idle points.

Reasoning

The Court perused the draft Memorandum of Appeal containing 9 grounds, including that the Judge erred in finding the vesting order still in force despite the setting aside of the ex parte judgment, and that the agreement was unenforceable due to material deviation. These were held to be arguable points requiring full consideration, not points that must succeed.

p. 3
02

Whether the appeal would be rendered nugatory absent stay

Holding

The nugatory test was satisfied because the applicant, though in possession, could be evicted and the property transferred to a third party beyond his reach.

Reasoning

The record showed the applicant was in possession of the suit property already transferred to the respondent. The Court agreed that absent stay the applicant could be evicted and the property transferred to a third party, putting it beyond his reach if the appeal succeeded, rendering the appeal nugatory.

p. 3

Legal principles established

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  • An applicant for stay under rule 5 must show the appeal is arguable and that it would be rendered nugatory absent stay.
  • An arguable point on appeal need not be one that must succeed; it suffices that it requires full consideration by the Court.

Court orders

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  1. 1.Motion allowed; stay of execution of the decree of the High Court granted pending hearing and determination of the intended appeal
  2. 2.Respondent restrained from evicting, dealing with or interfering with the applicant's stay in the suit property pending the intended appeal
  3. 3.Appeal to be filed and determined within 1 year, failing which the stay lapses
  4. 4.Costs of the Motion to be in the appeal

Authorities

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Legislation

  • Court of Appeal Rulesrule 5

Cases cited (2)

  • Stanley Kangethe Kinyanjui v Tony Ketter & 5 others
    [2013] eKLR

    Summary of principles governing rule 5 stay applications - arguability and nugatory aspects.

  • Dennis Mogambi Mongare v Attorney General & 3 Others
    [2012] eKLR

    An arguable point on appeal need not succeed; it requires full consideration by the Court.

On appeal from
High Court of Kenya at Nairobi
H.C.C.C. No. 205 of 1999
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules (Motion brought under rule 5 of the Court of Appeal Rules)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (13)

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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, "Kanwal Sarjit Singh Dhiman v Keshavji Jivraj Shah", Case Analysis (2022). Civil Application 317 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/633/eng@2022-07-08

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