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Court of AppealAllowedCivil Application E100 of 2022· [2022] KECA 953 (KLR)

Chigwell Holdings Limited v Ogumo & 2 others

Court of Appeal
29 July 2022
1,888 words in judgment
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The bottom line

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Kenya's Court of Appeal paused a Kshs.4.6 million judgment against a property developer, confirming that simply filing a notice of appeal is enough to seek a stay.

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 (Asike-Makhandia, J. Mohammed and H.A. Omondi, JJA) on a notice of motion dated 28th March 2022 brought under Section 3A of the Appellate Jurisdiction Act and Rule 5(2)(b) of the Court's Rules. Chigwell Holdings Limited, dissatisfied with the judgment and decree of Makau, J. in Constitutional Petition No. E249 of 2020 delivered on 3rd March 2022 - which ordered it to provide a children's play area for phases 1, 2 and 3 of Phenom Park Estate and install water filtration systems in phases 1 and 2 within 90 days - sought stay of execution of portions of the decree and of taxation of the respondents' party and party bill of costs pending a intended appeal. The respondents filed no replying affidavit, only submissions, arguing the notice of appeal was defective under Rule 75(3), that the appeal was not arguable, and that stay would endanger residents reliant on toxic water and children playing on roads. The Court held that the duly filed notice of appeal conferred jurisdiction, that alleged defectiveness of the notice is a matter to be raised elsewhere, that the intended appeal raised bona fide arguable grounds (including whether the High Court assumed jurisdiction over a purely contractual dispute), and that the nugatory aspect was demonstrated given the uncontroverted lack of alternative land, the imminent expiry of the 90-day moratorium, exposure to contempt proceedings, and the potential irrecoverability of taxed costs exceeding Kshs.4.6 million. The application was allowed in its entirety, with costs abiding the outcome of the appeal. The underlying High Court judgment was not disturbed at this interlocutory stage.

Key legal issues

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01

Jurisdiction premised on a duly filed notice of appeal

Holding

The filing of a notice of appeal grants the Court jurisdiction to entertain the Rule 5(2)(b) application; alleged defectiveness of the notice does not defeat that jurisdiction at this stage.

Reasoning

The respondents argued the notice of appeal was defective because it appealed the whole decision while stay was sought only of portions. The Court held that for a Rule 5(2)(b) application, filing a notice of appeal suffices to invoke jurisdiction, and any defect may be raised elsewhere at an appropriate time for striking out.

02

Arguability of the intended appeal

Holding

The grounds of the intended appeal, including jurisdiction over a purely contractual dispute and the water filtration order, are not idle and suffice to engage the Court's mind on appeal.

Reasoning

Applying the settled principles, the Court found the eight grounds of the draft memorandum of appeal raised bona fide issues deserving determination, including whether the High Court assumed jurisdiction over a purely contractual dispute and whether a restrictive constitutional interpretation was applied. A single bona fide issue would suffice.

p. 3
03

Nugatory aspect

Holding

The nugatory aspect was demonstrated because compliance within 90 days would require foregoing amenities, expose the applicant to contempt proceedings, and taxed costs may be irrecoverable if the appeal succeeds.

Reasoning

The applicant asserted, uncontroverted by the respondents, that it has no alternative unutilized land to provide the play area and would have to forego other amenities. The 90-day moratorium would expire before the appeal is determined, exposing directors to contempt, and the bill of costs of Kshs.4,676,480.00 may be irrecoverable if paid out and the appeal succeeds.

p. 3

Legal principles established

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  • A duly filed notice of appeal confers jurisdiction on the Court of Appeal to entertain a Rule 5(2)(b) application, and the defectiveness or otherwise of the notice is a matter to be taken up elsewhere.
  • The twin principles for Rule 5(2)(b) relief are that the appeal must be arguable and that it would be rendered nugatory absent the orders sought.
  • A single bona fide issue suffices to establish an arguable appeal.
  • The nugatory test asks whether what is sought to be stayed is reversible, or if not reversible, whether damages will reasonably compensate the aggrieved party.

Court orders

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  1. 1.Stay of execution of the judgment and decree of Makau, J. in Constitutional Petition No. E249 of 2020 pending the hearing and determination of the intended appeal
  2. 2.Stay of taxation of the respondents' party and party bill of costs
  3. 3.Costs to abide the outcome of the appeal
On appeal from
High Court of Kenya at Nairobi
Constitutional Petition No. E249 of 2020
Jurisdiction invoked
Section 3A of the Appellate Jurisdiction Act and Rule 5(2)(b) of the Court of Appeal Rules, invoked by a duly filed notice of appeal

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, "Chigwell Holdings Limited v Ogumo & 2 others", Case Analysis (2022). Civil Application E100 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/953/eng@2022-07-29

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