Nyokabi Karanja & 3 others v Kamuingi Housing Co Limited [2006] KECA 214 (KLR)
The bottom line
#Kenya's Court of Appeal refused to stop enforcement of a High Court decision because the applicants filed their appeal late and misled the court about a duplicate application.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the applicants had made out a case for stay of execution of the High Court ruling of 12th February 2002 under rule 5(2)(b)
- 2.Whether the intended appeal was arguable or frivolous, given its doubtful competence for having been filed out of time without an extension of time
- 3.Whether maintaining a second, identical application after the first had been withdrawn constituted an abuse of court process
Key legal issues
#Whether a stay of execution could be granted under rule 5(2)(b) where the underlying appeal is patently incompetent for having been filed out of time and never regularised
No. The appeal filed on 21st January 2005 was out of time, no extension of time had been sought or granted, and the applicants conceded the appeal's doubtful competence, leaving no proper basis for the exercise of discretion.
The court holds that although its rule 5(2)(b) jurisdiction is triggered by the filing of a notice of appeal, it will not act where the appeal's incompetence is conceded. The threshold requirement that the appeal be arguable was not met; the applicants themselves and the respondent agreed the appeal was of doubtful competence, so the discretion could not be exercised in their favour.
Whether the applicants' sworn averment that a similar 2003 application was still pending was honest, and the consequence if not
The averment was false. The earlier identical application (Civil App. No. 64 of 2003) had been withdrawn on 19th May 2004 at the instance of the applicants' own counsel, who then feigned ignorance, conduct the court condemned as unworthy of counsel and inequitable.
On the respondents' information the court called for and inspected its own record, confirming the 2003 application was withdrawn before a different bench. Counsel Mr. Owang knew before the withdrawal that the intended appeal was out of time and needed extension, yet no regularisation was ever made. The court held that such conduct by the appellants and their counsel does not endear itself to a court of equity.
Legal principles established
#- The jurisdiction under rule 5(2)(b) arises upon the filing of a notice of appeal, but where an appeal has been filed and is conceded to be patently incompetent, the court will not exercise its discretion in the applicant's favour; the applicant must show the appeal is arguable and not frivolous.
- An applicant under rule 5(2)(b) must show that the intended or filed appeal is arguable and not frivolous as a settled threshold principle.
- Maintaining two parallel and identical applications on the same matter is an abuse of court process.
- Courts do not act in vain; a party whose conduct is inequitable does not endear itself to the court's discretionary jurisdiction.
Court orders
#- 1.The notice of motion dated 2nd February 2005 is dismissed
- 2.Costs of the application shall be borne by the applicants
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- H.C.C.C. No. 1508 of 1994
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules (jurisdiction to grant stay of execution or injunctive relief pending appeal, arising upon filing of a notice of appeal)
Relief refused
#Stay of execution of the whole ruling of the High Court (Ransley, C.A) dated 12th February 2002 in H.C.C.C. No. 1508 of 1994
The intended appeal was of doubtful competence, having been filed out of time with no application for extension of time, and the applicants' conduct, including misleading the court on a previously withdrawn identical application, disentitled them to the court's equitable discretion
Costs
Costs of the application shall be borne by the applicants.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
It is one of the settled principles in considering such applications that the applicant must show that the intended appeal is arguable or is not frivolous.
While it is the position in law that our jurisdiction under rule 5(2)(b) arises upon the filing of a notice of appeal, we cannot, where an appeal has been filed before the hearing of an application under that rule, close our eyes to a concession that the appeal is patently incompetent. Courts do not act in vain.
it would, on the face of it, be an abuse of court process to maintain two parallel and identical applications on the same matter
As stated earlier, the application is for dismissal and we so order. Costs of the application shall be borne by the applicants.
Issues in the judgment
#The second applicant's name is rendered inconsistently within the judgment: 'SAMMY MACKENZIE' in the heading but 'SAMMY MAKENZIE' in the quoted affidavit
The notice of motion is dated 2nd February 2005 and counsel is recorded as seeking adjournment on the ground that the appeal filed on 21st January 2005 was incompetent, yet the ruling also states the notice of appeal was filed on 21st February 2002; the document refers to the appeal as 'filed on 21st January, 2005, being Civil Appeal No. 8 of 2005', which does not reconcile with the earlier notice of appeal date of 21st February 2002
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nyokabi Karanja & 3 others v Kamuingi Housing Co Limited [2006] KECA 214 (KLR)", Case Analysis (2006). Civil Application No. 61 of 2005. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2006/214/eng@2006-05-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.