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Court of AppealPartially AllowedCivil Application E106 of 2022· [2022] KECA 1112 (KLR)

National Land Commission v Tom Ojienda & Associates; National Bank of Kenya & another (Garnishee)

Court of Appeal
7 October 2022
1,902 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~8 min to read original · ~4 min brief

The bottom line

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The Court of Appeal paused a Kshs.397 million garnishee order against the National Land Commission, but only if it pays Kshs.100 million and files its appeal within 30 days.

What this practically means

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Executive summary

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This is a Rule 5(2)(b) ruling of the Court of Appeal at Kisumu (Kiage, Ngugi and Tuiyott, JJA) in which the National Land Commission sought stay of execution of garnishee orders absolute issued on 2nd August 2022 by the High Court, directing payment of Kshs.397,300,323.32 to Tom Ojienda & Associates from the Commission's accounts at the National Bank of Kenya and the Central Bank of Kenya. The High Court (Ogola, J.) had on 15th August 2022 granted stay on conditions: payment of half the decretum within three days and deposit of the balance in a joint interest-earning account, failing which the whole sum fell due. The Commission found these conditions onerous. The Court held that its jurisdiction was extant because Order 42 Rule 6(1) permits a fresh stay application before the appellate court whether or not the court below granted one. Applying the settled Kinyanjui v Ketter principles, it found the appeal arguable on the low threshold of a single arguable point, and, noting the colossal public funds involved and the respondent's undertaking to repay, granted a conditional stay: payment of Kshs.100 million within 14 days, filing and service of the intended appeal within 30 days, failing which the stay lapses and the entire decretal sum becomes immediately due. Costs were reserved to the intended appeal. The Court also deprecated the prolixity of the filings (some 1400 pages) and urged a pragmatic, settlement-oriented approach to interlocutory applications.

Key legal issues

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01

Jurisdiction to entertain a fresh stay application where the High Court had already granted a conditional stay

Holding

The Court's jurisdiction was extant; the applicant properly sought to stay the onerous conditions, and Rule 5(2)(b) was fully engaged under Order 42 Rule 6(1).

Reasoning

The Court distinguished between the order of stay (which favoured the applicant) and the onerous conditions attached to it. Order 42 Rule 6(1) permits the appellate court to consider a stay application afresh whether the court below granted or refused it, and to make such order as seems just.

p. 3
02

Whether the appeal is arguable and would be rendered nugatory

Holding

The appeal was arguable on the low threshold applicable; on the nugatory limb, the colossal public funds involved and the respondent's ability to repay weighed in favour of granting a conditional stay.

Reasoning

Applying the settled Kinyanjui v Ketter principles, the Court found a single arguable point suffices. On nugatory aspect, it noted the sums approaching Kshs.400 million were public funds and the respondent deposed he was well able to repay, permitting a conditional rather than absolute stay.

03

Proportionality and restraint in interlocutory applications

Holding

Rule 5(2)(b) applications must be lean; the Court deprecated the 1400 pages of filings and thirty-three grounds as unnecessary for a two-point test.

Reasoning

The Court criticised prolixity in interlocutory applications, noting that hearing appeals is its primary constitutional jurisdiction under Article 164(3), and that allowing voluminous interim applications to consume judicial time would invert priorities and worsen the appeal backlog.

p. 2

Legal principles established

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  • A party who sought stay before the High Court may make a fresh application for stay before the Court of Appeal whether or not the High Court granted the prior application, under Order 42 Rule 6(1).
  • The threshold for arguability on a Rule 5(2)(b) application is low: a single arguable point suffices.
  • The Court of Appeal must limit time and effort on interlocutory Rule 5(2)(b) applications; parties should adopt a pragmatic approach including negotiated interim settlements.

Court orders

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  1. 1.Conditional stay of execution of the High Court orders of 2nd and 15th August 2022 granted
  2. 2.Applicant to pay Kshs. 100,000,000 (a quarter or thereabouts of the decretal sum) into the respondent's bank account within 14 days
  3. 3.Applicant to institute the intended appeal and serve the record of appeal, written submissions and authorities within 30 days
  4. 4.Upon default of payment or filing, the stay order shall lapse and the entire decretal sum be immediately due and payable
  5. 5.Costs shall be in the intended appeal
On appeal from
High Court of Kenya at Eldoret
HC Com Case No. 73 of 2018 (High Court at Kisumu, Ochieng, J.)
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules, invoking Articles 159, 162(2), 164 and 165 of the Constitution and Section 3A and 3B of the Appellate Jurisdiction 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, "National Land Commission v Tom Ojienda & Associates; National Bank of Kenya & another (Garnishee)", Case Analysis (2022). Civil Application E106 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1112/eng@2022-10-07

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