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Court of AppealPartially AllowedCivil Application E016 of 2022· [2022] KECA 994 (KLR)

Kandie v Lekakeny

Court of Appeal
23 September 2022
SKS. Gatembu KairuPNP. NyamweyaJLJ. Lesiit
1,914 words in judgment
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The bottom line

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Kenya's Court of Appeal preserved a disputed Mombasa plot pending appeal, confirming that a dismissed incompetent application doesn't block a fresh one.

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 by David Kipkirui Kandie under Rule 5(2)(b) seeking a status quo order and an injunction preserving Mombasa Island/Block XXVI/212 pending his intended appeal against a judgment of C. Yano, J in ELC Case No. 126 of 2019, which declared that he held the suit land in trust for John Lemiso Ole Lekakeny and cancelled his title. The applicant relied on two conflicting ELC judgments over the same land and contended the appeal was arguable and would be rendered nugatory. The respondent opposed, arguing the Court was functus officio having dismissed a similar application (E094 of 2021), and that the appeal had been overtaken by events because the applicant's title had been cancelled and the land sold to a third party. The Court first held that the earlier application, having been struck out as incompetent and never considered on the merits, was not res judicata. It then found the intended appeal arguable and that it would be rendered nugatory without preservation orders. It granted a status quo order in terms of order 2 of the motion and directed the Deputy Registrar to fix the two pending appeals (Civil Appeals 126 of 2019 and 22 of 2012) for hearing together. No costs order was made.

Key legal issues

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01

Functus officio / res judicata

Holding

The prior dismissal of Civil Application E094 of 2021 was for incompetence, not on the merits, so the bar of res judicata does not apply.

Reasoning

Applying the Uhuru Highway Development Ltd v Central Bank of Kenya elements, the Court found the earlier application was struck out because it was not properly seized of it, the annexed Notice of Appeal related to a different ruling, and the application was neither final nor decided on the merits. The point therefore fails.

p. 3
02

Arguability of the intended appeal

Holding

The appeal is arguable; complaints about misdirection on evidence, misconstrued sale agreement clauses and a conflicting judgment in ELC No. 22 of 2012 are not frivolous.

Reasoning

The Court reviewed the memorandum of appeal, noted the existence of two conflicting ELC judgments over the same land and pending cross-appeals, and applied the settled standard that an arguable appeal is one that is not frivolous and deserves full argument, without assessing the ultimate merits.

03

Nugatory value of the appeal

Holding

Unless the orders are granted and the appeal succeeds, the appeal will be rendered nugatory because the respondent may dispose of his interest to third parties.

Reasoning

The applicant's title had been cancelled and the respondent had transferred the property to his name; the Court was satisfied that without preservation orders a successful appeal would be rendered nugatory, satisfying the second Rule 5(2)(b) criterion.

Legal principles established

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  • An application dismissed for incompetence (failure to annex a Notice of Appeal) without consideration on the merits is neither final nor on the merits, and is therefore not res judicata.
  • The twin principles for relief under Rule 5(2)(b) are an arguable appeal and that the appeal would be rendered nugatory absent the order.
  • An arguable appeal need not necessarily succeed; it suffices that it is not frivolous and ought to be argued fully.
  • The Court's discretion under Rule 5(2)(b) extends to stay of execution, injunction or stay of proceedings to preserve the subject matter of litigation pending appeal.

Court orders

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  1. 1.Grant of a status quo order in terms of order 2 of the Notice of Motion dated 22nd March 2022, preserving the parcel of land Ref. No. Mombasa Island/Block XXVI/212 pending the hearing and determination of the appeal
  2. 2.Direction to the Deputy Registrar to fix Mombasa Civil Appeal Nos. 126 of 2019 and 22 of 2012 for hearing together

Authorities

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Legislation

  • Court of Appeal RulesRule 5(2)(b)
  • Court of Appeal RulesRules 41 and 47(2), now 43 and 49(2)
  • Court of Appeal Rules 2022

Cases cited (6)

  • Regnoil Kenya Ltd v Winfred Njeri Karanja
    [2019] eKLR

    Criteria for granting orders under Rule 5(2)(b): arguable appeal and nugatory appeal.

  • Ruben & others v Nderitu & another
    [1989] eKLR

    At the interlocutory stage the court should not consider the merits of the appeal.

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

    Restatement and amplification of the Rule 5(2)(b) principles; also cited on the appeal being overtaken by events.

  • Kolongei Farmers Co-operative Society Ltd v Tom Kevolwe Anzingale & 6 others
    [2005] eKLR

    Width of the Court's powers under Rule 5(2)(b) to preserve the subject matter of litigation.

  • Uhuru Highway Development Ltd v Central Bank of Kenya
    [1999] eKLR

    Elements of res judicata.

  • Joseph Gitahi Gachau & Another v. Pioneer Holdings (A) Ltd. & 2 others
    Civil Application No. 124 of 2008

    An arguable appeal need not necessarily succeed; it must not be frivolous.

On appeal from
Environment and Land Court, Mombasa
ELC Case No. 126 of 2019
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules (2020/2022)

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, "Kandie v Lekakeny", Case Analysis (2022). Civil Application E016 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/994/eng@2022-09-23

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