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Court of AppealPartially AllowedCivil Application (ELC Appeal) arising from ELC Case No. 308 of 2013· [2024] KECA 115 (KLR)

Soni & another v Shah & another (Civil Application E222 of 2023) [2024] KECA 115 (KLR)

Court of Appeal
9 February 2024
SKS. Gatembu KairuFTF. TuiyottJLJ. Lesiit
1,583 words in judgment
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The bottom line

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Kenya's Court of Appeal stopped the sale of an elderly couple's Parklands home pending appeal, ruling you cannot stay a dismissal—but you can restrain the sale it unlocks.

What this practically means

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Executive summary

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This is an interlocutory ruling of the Court of Appeal at Nairobi delivered on 9th February 2024 by a bench of S. Gatembu Kairu, F. Tuiyott and J. Lesiit, JJ.A. The applicants, mother and son, sought a temporary injunction and stay of execution of the ELC ruling of 23rd March 2023 (Hon. Justice Angote) which dismissed their application to set aside an interlocutory judgment and final decree of Kshs. 23,158,880 entered in default of appearance in favour of the respondents arising from disputed loan transactions. The respondents opposed, arguing written admissions of debt, lack of clean hands in the applicants' haste to sell the property, and that claims of duress were unfounded. The Court held that the ELC ruling was a negative order not capable of being stayed, but looking past the imprecise prayers, the applicants' real complaint was the threatened sale of LR No. 34/524, their home. Applying the twin rule 5(2)(b) test, the Court found the intended appeal arguable on the contested quantum of the loan, the alleged coercion underlying the acknowledgments of debt, and the regularity of service; and found the nugatory principle engaged because the 1st applicant is in her 90s and the 2nd is disabled, and eviction from the family home would cause irreversible injustice. The Court granted a temporary injunction restraining the sale of the property pending determination of the appeal, conditioned on the respondents filing their memorandum and record of appeal within 30 days failing which the orders lapse automatically, and made no orders as to costs.

Key legal issues

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01

The twin test for injunction/stay pending appeal

Holding

The applicant must show the appeal is arguable and that it will be rendered nugatory if the orders are withheld; both limbs were satisfied here on the arguability of the dispute over the debt and the risk of rendering the applicants homeless.

Reasoning

The Court applied the established rule 5(2)(b) test, citing Stanley Kangethe Kinyanjui v Tony Ketter. It found arguability in the contested quantum of the loan and the challenge to service and to the acknowledgments of debt. On the nugatory limb, the advanced age of the 1st applicant and the disability of the 2nd, and the prospect of eviction from their home, meant the appeal could not be compensated in damages if the property were sold.

p. 2
02

Whether stay lies against a negative order

Holding

The prayer for stay of the ELC ruling was misconceived because that ruling merely dismissed the applicants' application; only the injunction relief was properly available.

Reasoning

The Court distinguished between the negative order (dismissal of the application to set aside the interlocutory judgment) which cannot be stayed, and the positive threat of sale of the property under the prohibitory order, which an injunction pending appeal can restrain. It looked past the lack of refinement in the prayers to the substance of the relief sought, reading ground 13.1 of the application as seeking to prevent the sale of LR No. 34/524.

p. 3

Legal principles established

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  • An applicant under rule 5(2)(b) must demonstrate that the intended appeal is arguable and that, if the orders sought are not granted, the appeal will be rendered nugatory.
  • A negative order, being a dismissal that leaves nothing to be executed, is not capable of being stayed.
  • An arguable appeal is not one that will necessarily succeed; it suffices that it is not frivolous.

Court orders

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  1. 1.A temporary order of injunction restraining the respondents from selling the property known as LR No. 34/524 located at Wambugu Road, Parklands Nairobi pending the hearing and determination of the appeal
  2. 2.The respondents to file and serve their memorandum and record of appeal within 30 days from the date of delivery of the ruling, failing which the orders granted shall automatically lapse
  3. 3.No orders as to costs

Authorities

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Cases cited (2)

  • Stanley Kangethe Kinyanjui vs. Tony Ketter & 5 others
    [2013] eKLR
  • John Mburu vs Consolidated Bank of Kenya
    [2018] eKLR
On appeal from
Environment and Land Court (ELC)
ELC Case No. 308 of 2013
Jurisdiction invoked
Rule 5(2)(b) jurisdiction of the Court of Appeal over intended appeals

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, "Soni & another v Shah & another (Civil Application E222 of 2023) [2024] KECA 115 (KLR)", Case Analysis (2024). Civil Application (ELC Appeal) arising from ELC Case No. 308 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/115/eng@2024-02-09

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