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Court of AppealPartially AllowedNot stated in the judgment· [2024] KECA 733 (KLR)

Ogato v Nyaguthii & another (Civil Application E120 of 2023) [2024] KECA 733 (KLR)

Court of Appeal of Kenya
21 June 2024
1,780 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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The Court of Appeal protected a land buyer's possession until his appeal is heard, confirming a dismissed suit doesn't bar fresh injunction applications.

What this practically means

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Executive summary

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This was an application under Rule 5(2)(b) of the Court of Appeal Rules, heard by a bench of three Judges of Appeal at Nakuru (Kantai, Ochieng and Korir, JJA), seeking an injunction restraining the 2nd respondent from entering upon, occupying, charging, developing or dealing with parcel Njoro/Ngata/Block 1/6182 pending the determination of an appeal against the dismissal of the applicant's claim to ownership. The applicant had bought the land from the late John Macharia under a 2011 sale agreement, paid most of the price and remained in possession, but the Environment and Land Court found the later sale and title of the 2nd respondent lawful, holding that the alleged fraud was not proved. The 2nd respondent issued an eviction notice and prospective buyers visited the land. She opposed the application, arguing it was res judicata given an earlier status quo application before the trial court, and that no stay could issue on a negative order. The court held that a negative order cannot be stayed, but that the relief sought here was an injunction, which is available; that a prior dismissal of a similar application by the trial court does not raise res judicata; and that the twin Rule 5(2)(b) principles were satisfied - the appeal raised at least one arguable issue, and an unrestrained sale to third parties would render it nugatory. The court granted the injunction until the appeal is determined, with costs to abide the appeal. The decision of the trial court itself was not disturbed.

Key legal issues

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01

Res judicata arising from a prior status quo application before the trial court

Holding

The dismissal of an earlier application for status quo/injunction pending appeal by the trial court does not bar a fresh application before the appellate court.

Reasoning

The court held that Rule 5(2)(b) is a procedural provision allowing the appellate court to protect the subject matter of an appeal or intended appeal. Because the jurisdiction invoked before the appellate court is original and discretionary, not appellate, a prior dismissal by the trial court of a similar application does not create res judicata as between the two applications.

p. 3
02

Stay of execution in respect of a negative order

Holding

Stay of execution cannot issue against a negative order such as a dismissal; however, the applicant here sought an injunction, not a stay.

Reasoning

The court reaffirmed Kaushik Panchamatia and Western College that a negative order leaves nothing to execute. But it distinguished the present application: the relief sought was an injunction to restrain dealings with the suit land pending appeal, which is available even where the order below was a dismissal.

p. 3
03

Twin principles under Rule 5(2)(b): arguability and nugatory-ness

Holding

The applicant demonstrated at least one arguable ground and that the appeal would be rendered nugatory if the 2nd respondent were not restrained, since she could dispose of the land to third parties while the appeal was pending.

Reasoning

Applying Kinyanjui v Keter, the court noted the 2nd respondent had given no undertaking not to sell and had not denied that prospective purchasers had visited the land. Possession by the applicant meant a sale would complicate legal issues and possibly result in eviction during the pendency of the appeal, rendering it nugatory.

p. 4

Legal principles established

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  • A negative order (such as a dismissal of a suit) cannot be the subject of an order for stay of execution because there is nothing to execute.
  • The dismissal by the court appealed from of an earlier application for an injunction or status quo pending appeal does not bar a fresh application before the appellate court and does not give rise to res judicata.
  • A claimant whose suit has been dismissed and who wishes to appeal may apply for an injunction to maintain the status quo until the appeal is determined.

Court orders

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  1. 1.An injunction restraining the 2nd respondent, whether by herself or by her employees, servants, agents, or otherwise howsoever, from entering onto, occupying, charging, carrying on any development upon or in any manner dealing with the suit land, until the appeal is determined
  2. 2.Costs of the application to abide the determination of the appeal and be deemed to have been issued in favour of the party who succeeds in the appeal

Authorities

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Legislation

  • Court of Appeal RulesRule 5(2)(b)
  • Court of Appeal RulesRule 75

Cases cited (11)

  • Kaushik Panchamatia & 3 Others v Prime Bank Limited & Another
    [2020] eKLR
  • Western College Farts and Applied Sciences v Oranga & Others
    [1976] KLR 63
  • Stanley Kang'ethe Kinyanjui v Tony Keter & 5 Others
    [2013] eKLR
  • Ruben & 9 Others v Nderitu & Another
    (1989) KLR 459
  • Halai & Another v Thornton & Turpin (1963) Ltd.
    (1990) KLR 365
  • David Morton Silverstein v Atsango Chesoni
    Civil Application No. Nai 189 of 2001
  • Damji Pragji Mandavia v Sara Lee Household & Body Care (K) Ltd
    Civil Application No. Nai 345 of 2004
  • Joseph Gitahi Gachau & Another v. Pioneer Holdings (A) Ltd. & 2 others
    Civil Application No. 124 of 2008
  • Reliance Bank Ltd v Norlake Investments Ltd
    [2002] 1 EA 227
  • International Laboratory for Research on Animal Diseases v Kinyua
    [1990] KLR 403
  • Dennis Mogambi Mang'are v Attorney General & 3 others
    [2012] eKLR
On appeal from
Environment and Land Court (ELC)
Not stated in the judgment
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Ogato v Nyaguthii & another (Civil Application E120 of 2023) [2024] KECA 733 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/733/eng@2024-06-21

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