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Court of AppealAllowedNotice of Motion dated 7th March 2024 (Civil Application, Nairobi)· [2024] KECA 1185 (KLR)

Jillo v African Banking Corporation Limited & 3 others (Civil Application E109 of 2024) [2024] KECA 1185 (KLR)

Court of Appeal of Kenya
20 September 2024
1,641 words in judgment
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The bottom line

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Kenya's Court of Appeal halted all execution and proceedings in a Kshs 100 million Eastleigh property dispute, ruling a live lower-court case could make the appeal pointless.

What this practically means

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Executive summary

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This was a single-judge-panned Court of Appeal application under rule 5(2)(b) seeking stay of execution of a ruling of the Environment and Land Court (Wabwoto, J.) dated 19th December 2023 in Nairobi ELC E065 of 2023, together with stay of further proceedings before the ELC, pending an intended appeal. The dispute concerns property known as L.R. No. 36/11/148 Eastleigh, purchased by the applicant at a public auction for Kshs.100,000,000/-. The 3rd and 4th respondents, tenants, brought BPRT proceedings; the BPRT decided in the applicant's favour on 2nd June 2023. The 1st respondent appealed to the ELC and obtained a stay of the BPRT orders, prompting the present application. The 1st respondent challenged the Court's jurisdiction, alleging the notice of appeal was not served within seven days under rule 79, and opposed the application on its merits. Applying the established two-limb test - arguability and nugatory-ness - the Court found the intended appeal arguable, since the ELC was faulted for granting stay without security under Order 42 of the Civil Procedure Rules, and found the nugatory limb satisfied because the live ELC proceedings would likely be concluded first, rendering the intended appeal academic. The Court allowed the application, granting stay of execution and stay of proceedings, with costs of the application to abide the outcome of the intended appeal.

Key legal issues

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01

Whether the intended appeal is arguable

Holding

The intended appeal was arguable because the ELC was faulted for its interpretation of Order 42 of the Civil Procedure Rules in granting stay without security, and such issues can only be interrogated on appeal.

Reasoning

The Court noted that the ELC allegedly misinterpreted Order 42 of the Civil Procedure Rules by granting stay of execution of the BPRT orders without requiring security from the 1st respondent. Whether the judge improperly interpreted those provisions and improperly exercised his discretion are matters for the full appeal. The applicant therefore established that the intended appeal is not idle but arguable, satisfying the first limb of the rule 5(2)(b) test.

p. 3
02

Whether the intended appeal would be rendered nugatory absent stay

Holding

The nugatory limb was satisfied because the ELC proceedings were live and likely to be heard and determined before the intended appeal, rendering it a mere academic exercise.

Reasoning

The Court observed that proceedings before the ELC were live, with the appeal scheduled for mention on 19th March 2024. If those proceedings continued, the ELC was likely to hear and determine the appeal before the intended appeal was heard, rendering it a mere academic exercise. The applicant therefore satisfied the Court that the intended appeal would be rendered nugatory in the absence of the orders sought.

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Legal principles established

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  • On a rule 5(2)(b) application, the applicant must satisfy the Court that the appeal or intended appeal is arguable and that, unless the orders sought are granted, the appeal, if successful, shall be rendered nugatory.
  • A single arguable ground of appeal suffices on a rule 5(2)(b) application.
  • An arguable appeal is not one which must necessarily succeed, but one which is not frivolous and ought to be argued fully.

Court orders

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  1. 1.Stay of execution of the Ruling and Order of the ELC dated 19th December 2023 in Nairobi ELC E065 of 2023 and all subsequent and/or ancillary proceedings pending hearing of the intended appeal
  2. 2.Stay of further proceedings of the ELC suit pending hearing and determination of the intended appeal
  3. 3.Costs of the application to abide the outcome of the intended appeal

Authorities

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Legislation

  • Rules of this Court (Court of Appeal Rules)rule 5(2)(b)
  • Rules of this Court (Court of Appeal Rules)rule 79
  • Civil Procedure Rules, 2010Order 42
  • Land Actsection 152E

Cases cited (4)

  • Stanley Kangethe Kinyanjui vs. Tony Ketter & 5 Others
    [2013] eKLR
  • Damji Pragji Mandavia vs. Sara Lee Household & Body Care (K) Ltd
    Civil Application No. Nai 345 of 2004
  • Joseph Gitahi Gachau & Another vs. Pioneer Holdings (A) Ltd. & 2 others
    Civil Application No. 124 of 2008
  • Fatuma Mohamed Haji vs. African Banking Corporation Limited and 3 Others
    Milimani High Court Commercial Court Suit No. 327 of 2017
On appeal from
Environment and Land Court, Nairobi
Nairobi ELC E065 of 2023 (appeal from BPRT Case No. E881 of 2022)
Jurisdiction invoked
rule 5(2)(b) of the Court of Appeal Rules (Rules of this Court)

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, "Jillo v African Banking Corporation Limited & 3 others (Civil Application E109 of 2024) [2024] KECA 1185 (KLR)", Case Analysis (2024). Notice of Motion dated 7th March 2024 (Civil Application, Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1185/eng@2024-09-20

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