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Court of AppealDismissedApplication dated October 21, 2022 (in HCCC No 3164 of 1995 litigation)· [2023] KECA 104 (KLR)

Koinange Investments and Development Co Ltd v Ngethe & 3 others (Sued as the personal representatives of the Estate of Robert Nelson Ngethe (Deceased)) (Civil Application E380 of 2022) [2023] KECA 104 (KLR)

Court of Appeal
3 February 2023
3,810 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Court of Appeal refused to freeze a Nairobi land sale pending appeal, ruling Koinange Investments showed no substantial loss since money can adequately compensate it.

What this practically means

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Executive summary

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The Court of Appeal (Okwengu, Warsame and Mativo, JJAA) ruled on an application dated October 21, 2022 by Koinange Investments and Development Co Ltd seeking an injunction and stay of execution of a High Court ruling of September 23, 2022 (Mwita, J) in the 35-year-old dispute arising from a December 1988 option to purchase part of LR No 209/9099, Nairobi. The High Court had ordered the respondents to pay Kshs 47,182,697.50 as the balance of the purchase price, failing which the applicant could execute. The applicant, intending to appeal, sought to restrain transfer or alienation of the suit property pending appeal. Applying Rule 5(2)(b) of the Court of Appeal Rules, 2022, the court required the applicant to demonstrate both an arguable appeal and that the appeal would be rendered nugatory absent stay. While recognising that a single bona fide ground suffices and declining definitive findings, the court noted the 2002 judgment of Osiemo, J has never been appealed; the intended appeal targets only a ruling. On the nugatory limb, the court found no substantial loss: the transfer would be reversible, the property value ascertainable, damages an adequate remedy, and the purchase price already deposited in court. The application was dismissed with costs to the respondents.

Key legal issues

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01

Whether the intended appeal is arguable

Holding

A single bona fide arguable ground suffices; the court does not make definitive findings at this stage.

Reasoning

The court restated the principles in Stanley Kang'ethe Kinyanjui v Tony Ketter: an arguable appeal need not succeed, but must not be frivolous and must raise at least one genuine issue. The court noted the 2002 judgment of Osiemo, J has never been appealed against; the intended appeal is against a ruling, not the final judgment.

p. 5
02

Whether the appeal would be rendered nugatory if stay is refused

Holding

No substantial loss shown; the transfer would be reversible and damages an adequate remedy.

Reasoning

The applicant provided a valuation of the land, and the court found the transfer rescindable and monetary compensation adequate should the appeal succeed. The purchase price had been deposited in court pursuant to a court order, securing the respondents' position. Reliance Bank and Mukuma v Abuoga were applied.

p. 7

Legal principles established

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  • An application under Rule 5(2)(b) must satisfy the twin requirements of an arguable appeal and that the appeal would be rendered nugatory absent stay.
  • On a Rule 5(2)(b) application the court must not make definitive or final findings of fact or law.
  • Factors rendering an appeal nugatory are considered case by case, weighing the conflicting claims of both sides; substantial loss is the cornerstone of the jurisdiction.
  • The jurisdiction under Rule 5(2)(b) is original and discretionary.

Court orders

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  1. 1.Dismissal of the applicant's application dated October 21, 2022 seeking injunction and stay of execution pending appeal
  2. 2.Costs of the application awarded to the respondents

Authorities

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Legislation

  • Civil Procedure RulesOrder 9B Rule 8
  • Civil Procedure ActSection 3A
  • Limitation of Actions Act
  • Court of Appeal Rules, 2022Rule 5(2)(b)

Cases cited (13)

  • Joseph Gitahi Gachau & Another v Pioneer Holdings (A) Ltd & 2 Others
    Civil Application No 124 of 2008
  • Stanley Kangethe Kinyanjui v Tony Ketter & 5 Others
    [2013] eKLR
  • George Kamau Kimani & 4 Others v The County Government Of Trans-Nzoia & Another
    [2016] eKLR
  • Accredo AG & 3 Others v Steffano Uccelli & Another
    [2019] eKLR
  • Suleiman Said Shabhal v Independent Electoral & Boundaries Commission & 3 Others
    [2014] eKLR
  • Khairunnisa Mohamedali Harunani & Another v Niranjan Zaverchand Shah Shushila & 2 Others
    [2016] eKLR
  • Gulf Timber & Hardware Supplies Limited v Ngaruiya & 5 Others
    Civil Appeal E203 of 2021 [2022] KECA 87 (KLR)
  • Public Service Commission & 72 Others v Okiya Omtatah & 4 Others
    [2021] eKLR
  • Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 Others
    [2014] eKLR
  • Pauline Yebei & Another v Estate of Kiprotich Letting represented by Andrew Kipkoech Kiprono
    [2017] eKLR
  • Ishmael Kagunyi Thande v Housing Finance Kenya Ltd
    Civil Application No Nai 157 of 2006 (Unreported)
  • Reliance Bank Ltd v Norlake Investments Ltd
    [2002] 1 EA 227
  • Mukuma v Abuoga
    [1988] KLR 645
On appeal from
High Court
HCCC No 3164 of 1995 (ruling by Mwita, J delivered September 23, 2022)
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules, 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, "Koinange Investments and Development Co Ltd v Ngethe & 3 others (Sued as the personal representatives of the Estate of Robert Nelson Ngethe (Deceased)) (Civil Application E380 of 2022) [2023] KECA 104 (KLR)", Case Analysis (2023). Application dated October 21, 2022 (in HCCC No 3164 of 1995 litigation). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/104/eng@2023-02-03

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