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)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the applicants had an arguable appeal against the contempt findings
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.
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.
Whether the second limb of the twin principle (nugatory-ness) required determination
Not reached. Having found no arguable appeal, the court declined to address the nugatory limb.
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.
Legal principles established
#- 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
#- 1.The applicants' Motion dated August 2, 2023 for stay of execution pending appeal is dismissed
- 2.Costs of the application awarded to the respondent and to the 3rd interested party
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.