Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealAllowedCivil Appeal (Application) E090 of 2022· [2022] KECA 1347 (KLR)

Ganjoni Properties Limited & 10 others v Al-Riaz International Limited; Kamundi & another (Affected Party)

Court of Appeal
2 December 2022
PNP NyamweyaJLJW LessitGOGV Odunga
2,976 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

#

Kenya's Court of Appeal paused a Mombasa land dispute because the lower court had to first settle who has jurisdiction to hear the case.

What this practically means

#

Executive summary

#
This is a ruling of the Court of Appeal at Mombasa (Nyamweya, Lessit and Odunga JJ.A) on a Notice of Motion dated September 26, 2022 by Ganjoni Properties Limited and ten others seeking a stay of proceedings in Mombasa HCCC 158 of 2014 (Al-Riaz International Limited v Ganjoni Properties Limited), pending the hearing of their appeal (Civil Appeal No E091 of 2022) against a ruling of Njoki Mwangi J dated July 15, 2022. The High Court had dismissed two preliminary objections challenging its jurisdiction and directed that a contempt application filed by the Respondent be heard together with the jurisdictional challenge. The Applicants argued that the High Court defied the Court of Appeal's earlier direction in Civil Appeal No 14 of 2018 that the jurisdictional issue be determined on a priority basis, and that hearing a contempt application before determining jurisdiction would render the appeal nugatory. The Respondent countered that the intended appeal was frivolous and that the High Court had not declined to determine jurisdiction. Applying the settled two-limb test from Stanley Kangethe Kinyanjui v Tony Ketter, the Court found the appeal arguable - particularly on whether the High Court was bound by the 2018 directions and precedent on jurisdiction - and found the nugatory limb satisfied, since proceeding would render the appeal academic and expose the Applicants to contempt findings. The Court allowed the application, stayed further proceedings in the High Court suit pending the appeal, and made no order as to costs.

Key legal issues

#
01

Whether the Applicants demonstrated an arguable appeal

Holding

Yes - the arguments raised arguable points on whether the High Court was bound to determine jurisdiction in light of the Court of Appeal's 12 July 2018 decision and applicable precedent.

Reasoning

The parties did not contest that the High Court made no determination on its jurisdiction. The Applicants' memorandum raised issues on whether the High Court correctly applied the directions in Civil Appeal No 14 of 2018, whether it failed to consider the earlier undetermined preliminary objection, and whether it properly applied Supreme Court and Court of Appeal authorities on jurisdiction. These were arguable, though not necessarily bound to succeed.

p. 5
02

Whether the appeal would be rendered nugatory absent a stay

Holding

Yes - if the High Court proceeded, the appeal would be an academic exercise, and the Applicants face a contempt application whose outcome depends on the jurisdictional question.

Reasoning

The appeal challenges the High Court's jurisdiction. If the High Court continued hearing matters, including the pending contempt application, the appeal would be rendered an academic exercise and the Applicants and Affected Parties would be affected by findings on jurisdiction in further proceedings. The Court found the second limb of the test satisfied.

p. 5

Legal principles established

#
  • The two-limb test for stay of proceedings under Rule 5(2)(b) - arguable appeal and nugatory appeal - applies equally to stay of proceedings as to stay of execution or injunction.
  • An arguable point need not be one that must succeed, but merely one deserving of consideration by the Court.

Court orders

#
  1. 1.Stay of further proceedings in High Court Civil Case No 158 of 2014 - Al-Riaz International Limited v Ganjoni Properties Limited, pending the hearing and determination of Civil Appeal No E091 of 2022
  2. 2.No order as to costs of the application

Authorities

#

Legislation

  • Court of Appeal Rules, 2022Rule 5(2)(b)
  • Constitution of Kenya, 2010Article 162(2)(b)
  • Landlord and Tenant (Shops, Hotels and Catering Establishments) Actsection 2
  • Environment and Land Court Act, 2011section 13(2)

Cases cited (7)

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

    Restatement and amplification of principles for stay of proceedings under Rule 5(2)(b)

  • Motor Vessel M.V. Lillian S v. Caltex Oil (Kenya) Limited
    [1989] KLR

    Jurisdiction must be acquired before judgment; a jurisdictional question must be decided forthwith

  • Ganjoni Properties Limited v Al-Riaz International Limited & Another
    Civil Appeal No 14 of 2018

    Prior decision allowing appeal, setting aside orders and directing jurisdictional issue be determined on priority basis

  • Global Tours & Travels Limited; Nairobi HC Winding Up Cause no 43 of 2000

    Stay of proceedings turns on the interest of justice, including expeditious disposal and arguability (cited by Respondent)

  • Republic v Karisa Chengo & 2 others
    Petition no 5 of 2015, [2017] eKLR

    On the question of jurisdiction (cited in the memorandum of appeal)

  • Albert Chaurembo Mumba & 7 others v Morris Munyao & 148 others
    Petition No 3 of 2016

    On the question of jurisdiction (cited in the memorandum of appeal)

  • Mukisa Biscuit Manufacturing Co. Limited v West End Distributors Limited

    On the question of jurisdiction/preliminary objections

On appeal from
High Court of Kenya at Mombasa
Mombasa HCCC 158 of 2014
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules, 2022

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Ganjoni Properties Limited & 10 others v Al-Riaz International Limited; Kamundi & another (Affected Party)", Case Analysis (2022). Civil Appeal (Application) E090 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1347/eng@2022-12-02

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