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Court of AppealDismissedCivil Application No. Nai. 9 of 1997 (5/97 UR)· [1997] KECA 121 (KLR)

Nixo Garments Limited v Minaz Shabanali Mohamed Javer & 1 other

Court of Appeal
31 January 1997
1,876 words in judgment
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The bottom line

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Kenya's Court of Appeal dismissed Nixo Garments' bid to block eviction, confirming unregistered tenancies still bind the parties who signed them.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Nairobi (Kwach and Pall, JJ.A., and Bosire, Ag. J.A.) on a Notice of Motion under rule 5(2)(b) of the Court of Appeal Rules in which Nixo Garments Limited sought an injunction restraining the Javer respondents from evicting it from premises on L.R. No. 209/2627, Njugu Lane, Nairobi, pending an intended appeal against a ruling of Mbogholi Msagha, J. dated 16 January 1997 declining an interlocutory injunction in High Court Civil Case No. 2546 of 1996. The applicant held over after expiry of an unregistered five-year-and-three-month tenancy and argued that non-registration under section 99 of the Government Lands Act rendered the tenancy instrument inadmissible and created a protected tenancy under Cap 301. The court restated the twin rule 5(2)(b) criteria of an arguable appeal and nugatory-ness, and held that the applicant's intended appeal raised no arguable issue. It held that Batchelor's Bakery Ltd v Westlands Securities Ltd was not confined to section 32 of the Registration of Titles Act but extended to unregistered registrable transactions under the Government Lands Act, since an unregistered tenancy is a valid contract inter partes though it gives no protection against third parties. The court further criticised the applicant's lack of candour in omitting key documents from its affidavits. The application was dismissed with costs.

Key legal issues

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01

Test for injunction pending appeal under rule 5(2)(b)

Holding

The applicant failed to demonstrate an arguable appeal; the twin principles of arguability and nugatory-ness were not satisfied

Reasoning

The court restated the established rule 5(2)(b) test: the applicant must show the appeal is arguable and that it would be rendered nugatory if successful without the order. The court found the intended appeal raised no arguable issue because Batchelor's Bakery squarely governed the effect of non-registration of the tenancy, and the applicant's arguments did not distinguish it.

p. 2
02

Effect of non-registration of a lease exceeding one year under the Government Lands Act and the Transfer of Property Act

Holding

An unregistered tenancy remains valid inter partes notwithstanding sections 99 and 100 GLA and section 107 TPA; Batchelor's Bakery is not confined to section 32 RTA

Reasoning

The court held that Madan JA's reasoning in Batchelor's Bakery referred disjunctively to both section 107 TPA and section 32 RTA, showing the principle extended to all registration statutes including the GLA. The unregistered tenancy is enforceable between the parties but confers no protection against third parties.

p. 2
03

Duty of candour in applications for discretionary equitable relief

Holding

An applicant for an injunction who slants its case or withholds important documents forfeits the court's discretion

Reasoning

The applicant's supporting affidavit deliberately omitted the tenancy instrument it alleged was invalid, the deed of assignment, and documents showing its reaction to the notice to quit. The court held that a party invoking equitable and discretionary relief must show utmost candour, and failure to do so disentitles it to the relief sought.

p. 3
04

Effect of assignment of the reversion on the tenancy

Holding

The issue was not pleaded and not raised in the superior court, so it did not arise for consideration

Reasoning

The applicant raised for the first time before the Court of Appeal the effect of the assignment of the premises to the respondents. The court declined to entertain it because it was not pleaded and was not raised when the injunction application was canvassed in the superior court.

p. 2

Legal principles established

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  • To succeed under rule 5(2)(b) an applicant must show an arguable appeal and that the appeal, if successful, would be rendered nugatory unless the order is granted
  • Batchelor's Bakery applies to unregistered registrable land transactions under the Government Lands Act as well as the RTA; an unregistered tenancy is a valid contract inter partes though it gives no protection against third parties
  • A party seeking discretionary and equitable relief must show utmost candour to the court

Court orders

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  1. 1.The application for an injunction pending the lodging and hearing of the intended appeal is dismissed with costs
On appeal from
High Court of Kenya at Nairobi
H.C.C.C. No. 2546 of 1996
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules (injunction pending lodging and hearing of an 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, "Nixo Garments Limited v Minaz Shabanali Mohamed Javer & 1 other", Case Analysis (1997). Civil Application No. Nai. 9 of 1997 (5/97 UR). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1997/121/eng@1997-01-31

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