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Court of AppealAllowedCivil Appeal (Application) 220 of 2020· [2022] KECA 914 (KLR)

Fatumа Mohammed Ali v Kenya Commercial Bank & another

Court of Appeal
8 July 2022
WKW KaranjaDMD K MusingaSKS Gatembu Kairu
1,395 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal stopped the transfer of a disputed Nairobi property, confirming that possession alone can justify freezing a judgment pending appeal.

What this practically means

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Executive summary

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The applicant, Fatuma Mohammed Ali, moved the Court of Appeal by Notice of Motion under sections 1A and 1B of the Civil Procedure Act and rule 5(2)(b) of the Court of Appeal Rules seeking stay of execution of the judgment and decree of Bor, J. of the Environment & Land Court delivered on 5th May 2020, pending an intended appeal. The trial court had declared the sale contract over LR.37/260/29 Nairobi null and void, directed the applicant to restitute rent collected since 2008 within 45 days, and held the transfer and charge of the property irregular and unlawful for lack of consideration. The applicant argued the intended appeal was arguable on four grounds, including want of consideration, contradictory findings, an unpleaded rent claim, and limitation, and that the appeal would be rendered nugatory because the 1st respondent had invaded the property and threatened demolition. The 1st respondent, already in possession and expending money on repairs, countered that the appeal was not arguable and that the applicant would suffer no harm since title, a charge to KCB, and a restriction on the title preserved the property. Applying the settled twin principles from Multimedia University v Naituli and Stanley Kangethe Kinyanjui v Tonny Ketter, the Court found the appeal arguable and held that possession gave the 1st respondent opportunity to alter or demolish the property, making a successful appeal academic and damages inadequate. Both limbs satisfied, the Court allowed the application as prayed, with costs in the appeal.

Key legal issues

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01

Whether the intended appeal was arguable under rule 5(2)(b)

Holding

The Court was satisfied from the draft memorandum of appeal that the intended appeal was arguable, without saying more to avoid embarrassing the bench that will hear the appeal.

Reasoning

The Court reviewed the four draft grounds, including want of consideration, contradictory findings on rescission versus nullity, unpleaded rent claim, and limitation, and found the appeal arguable. It deliberately refrained from extensive analysis, consistent with settled practice on rule 5(2)(b) applications, so as not to pre-judge or embarrass the eventual appeal bench.

p. 3
02

Whether the appeal would be rendered nugatory absent stay

Holding

The nugatory limb was satisfied because the 1st respondent, already in possession, could use, develop or demolish the suit property, rendering a successful appeal irreversible and making damages inadequate.

Reasoning

The 1st respondent acknowledged taking possession and claimed to be repairing the dilapidated house. The Court reasoned that possession gave her opportunity to change the property's character, possibly demolishing it. That irreversible scenario would reduce a successful appeal to an academic exercise, and an award of damages would not be an adequate remedy, satisfying the second rule 5(2)(b) limb.

p. 3

Legal principles established

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  • An applicant under rule 5(2)(b) must satisfy both limbs: an arguable (not necessarily certain to succeed) appeal, and that the appeal would be rendered nugatory absent stay.

Court orders

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  1. 1.Stay of execution of the judgment and decree of the Environment & Land Court delivered on 5th May 2020 granted as prayed, pending hearing and determination of the appeal
  2. 2.Costs of the application to be in the appeal

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B
  • Court of Appeal RulesRule 5(2)(b)

Cases cited (2)

  • Multimedia University & another v. Professor Gitile N. Naituli
    [2014] eKLR

    Principles for grant of stay under rule 5(2)(b)

  • Stanley Kangethe Kinyanjui v. Tonny Ketter & others
    [2013] eKLR

    Arguability and nugatory-prong tests for rule 5(2)(b) relief

On appeal from
Environment & Land Court at Nairobi
E.L.C. Case No. 917 of 2005 (consolidated with H.C.C No. 5245 of 1988 and H.C.C No. 4886 of 1988)
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules and sections 1A and 1B of the Civil Procedure Act

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Fatumа Mohammed Ali v Kenya Commercial Bank & another", Case Analysis (2022). Civil Appeal (Application) 220 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/914/eng@2022-07-08

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