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Court of AppealDismissedCourt of Appeal Application dated August 2, 2023 (Rule 5(2)(b) Motion) in intended appeal from Nairobi ELC Misc. App. No. E273 of 2022· [2023] KECA 1129 (KLR)

Koinange & another v Royal Gardens Limited; King’ara t/a Gichuki King’ara & Co Advocates & 3 others (Interested Parties) (Civil Application E372 of 2023) [2023] KECA 1129 (KLR)

Court of Appeal of Kenya
22 September 2023
2,657 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal refused to pause contempt orders against a landlady and auctioneer who sold attached goods despite tribunal orders preserving them.

What this practically means

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Executive summary

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The applicants, Barbara Wambui Koinange and Harrison Kihara TA Hariki Auctioneers, moved the Court of Appeal under Rule 5(2)(b) of the Court of Appeal Rules seeking stay of execution of rulings of the Environment and Land Court at Nairobi (Mogeni, J.) dated May 30, 2023 and partially reviewed on July 19, 2023, by which they had been cited for contempt of orders of the Business Premises Rent Tribunal, fined KShs. 100,000 each and ordered to purge the contempt by paying Recon Suppliers Limited KShs. 1,095,730 or face six months' imprisonment. The contempt arose from the public auction on September 10, 2022 of assorted building steel materials attached in distress for rent, four days before an inter partes hearing, in alleged disobedience of the tribunal's orders of September 2 and 6, 2022 preserving the attached property. The applicants argued they were held in contempt of non-existent orders, that the orders were not directed to the 1st applicant personally, that the Judge exceeded jurisdiction, and that the deponent to the 3rd interested party's affidavit lacked capacity. The Court, comprising Musinga, Laibuta and Ngenye-Macharia, JJA, applied the settled twin principles for stay pending appeal. It found no arguable appeal: the tribunal's order of September 6, 2022 stayed release of the vehicle and goods, preservation orders were directed at the landlady and her agent, and the capacity objection was unmerited. Having failed the arguability limb, the court did not consider whether the appeal would be rendered nugatory. The Motion was dismissed with costs to the respondent and the 3rd interested party. The decision below was not disturbed at this interlocutory stage.

Key legal issues

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01

Whether the applicants had an arguable appeal against the contempt findings

Holding

No arguable appeal. The tribunal's orders of September 2 and 6, 2022 preserved the motor vehicle and all attached goods pending inter partes hearing; the applicants' sale of the goods on September 10, 2022 was willful disobedience.

Reasoning

The court read the tribunal's order No. 1 of September 6, 2022 as staying order No. 3 of September 2, 2022, which had directed release of the vehicle and goods, so all distrained property was to be preserved until September 14, 2022. The contention that preservation orders were not directed personally to the 1st applicant failed since the orders were directed at the landlady and her agent. Arguments of non-existent orders, excess jurisdiction and lack of capacity of the deponent were each found not arguable.

p. 5
02

Whether the second limb of the twin principle (nugatory-ness) required determination

Holding

Not reached. Having found no arguable appeal, the court declined to address the nugatory limb.

Reasoning

The twin principles are cumulative thresholds; failure on the arguability limb is dispositive and renders consideration of whether the appeal would be rendered nugatory unnecessary. The motion therefore failed in its entirety with costs.

p. 6

Legal principles established

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  • To succeed on a Rule 5(2)(b) application, an applicant must satisfy the twin principles of an arguable appeal and that the appeal would be rendered nugatory absent stay; if the first limb fails, the court need not consider the second

Court orders

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  1. 1.The applicants' Motion dated August 2, 2023 for stay of execution pending appeal is dismissed
  2. 2.Costs of the application awarded to the respondent and to the 3rd interested party

Authorities

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Legislation

  • Court of Appeal RulesRule 5(2)(b)

Cases cited (8)

  • Evans Thiga Gaturu & another v Naiposha Company Limited & 13 others
    [2016] eKLR
  • Executive Committee, Kisii County & 2 others v Masosa Construction Company Limited & another
    [2016] eKLR
  • Stanley Kang'ethe Kinyanjui v Tony Ketter & 5 others
    [2013] eKLR
  • Hadiya Construction and Mineral Limited v Ajabu East Africa Limited
    [2018] eKLR
  • Rajesh Pranjivan Chudasama v Sailesh Pranjivan Chudasama
    [2014] eKLR
  • Anne Wanjiku Kibeh v Clement Kungu Waibara and IEBC
    [2020] eKLR
  • Kenya Tea Growers Association and another v Kenya Planters Agricultural Workers Union
    [2012] eKLR
  • Ahmed Musa Ismail v Kumba Ole Ntamorua and 4 others
    [2014] eKLR
On appeal from
Environment and Land Court at Nairobi
Nairobi ELC Misc. App. No. E273 of 2022
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules (stay of execution pending intended 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, "Koinange & another v Royal Gardens Limited; King’ara t/a Gichuki King’ara & Co Advocates & 3 others (Interested Parties) (Civil Application E372 of 2023) [2023] KECA 1129 (KLR)", Case Analysis (2023). Court of Appeal Application dated August 2, 2023 (Rule 5(2)(b) Motion) in intended appeal from Nairobi ELC Misc. App. No. E273 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/1129/eng@2023-09-22

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