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Court of AppealDismissedCivil Application Nai 106 of 2007

BENJA PROPERTIES LIMITED v H.H. DR. SYEDNA MOHAMED BURHANNUDDIN SAHEB & 2 others [2007] KECA 82 (KLR)

Court of Appeal of Kenya
20 July 2007
EOE. O. O'KubasuPWP. N. WakiWDW. S. Deverell
1,505 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to halt a High Court land judgment because any harm could be compensated with money damages.

What this practically means

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Executive summary

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This Court of Appeal ruling at Nairobi (O'Kubasu, Waki and Deverell JJA) determined a Notice of Motion dated 15th May 2007 by Benja Properties Limited seeking stay of execution of the judgment and decree of Visram J delivered on 27th February 2007 in H.C.C.C. No. 73 of 2000, pending an appeal filed as Civil Appeal No. 79 of 2007. The underlying dispute concerned LR. No. 209/136/239 on Kirinyaga Road, Nairobi, where the High Court had cancelled the applicant's grant for LR. No. 209/12999 (allotted over plots owned by the first three respondents), enjoined the applicant from interfering with the respondents' plots, dismissed the applicant's third-party claim against the Attorney General and Commissioner of Lands for want of statutory notice, and awarded costs to the plaintiffs. Under rule 5(2)(b) the applicant had to show an arguable appeal and that refusal of stay would render its success nugatory. Arguability was conceded by all respondents' counsel. On the nugatory limb, the court found fears of alienation unfounded: the respondents were resident Kenyans with no intention of alienating the land, the commercial property was occupied by rent-paying Jua Kali artisans, its value was ascertainable, damages would be an adequate remedy, and lis pendens under section 52 of the Transfer of Property Act protected the property. The application was dismissed with costs to the respondents on 20th July 2007.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the intended appeal is arguable
  2. 2.Whether, if stay is refused, the success of the appeal would be rendered nugatory

Key legal issues

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01

The arguability test under rule 5(2)(b)

Holding

The test was conceded - counsel for all respondents admitted the appeal raised arguable points, so the court did not dwell on it

Reasoning

The court recited the settled principle from Retreat Villas Ltd v Equatorial Commercial Bank Ltd that an applicant need only show serious questions of law or that reasonable argument can be put forward, citing Githunguri v Jimba Credit and J.K. Industries. Counsel for the respondents conceded arguability, so the court moved directly to the nugatory-ness limb.

p. 2
02

Whether the appeal would be rendered nugatory if stay is refused

Holding

No - fears of alienation were unfounded and any loss was compensable in damages, especially given lis pendens under section 52 of the Transfer of Property Act

Reasoning

The respondents swore they were resident Kenyans with no intention of alienating the land. The property was commercial, occupied by rent-paying Jua Kali artisans, its value ascertainable, and the parties, including the Government, able to compensate in damages. Section 52 of the Transfer of Property Act (lis pendens) further protected the property from alienation prejudicial to any party pending suit.

p. 3

Legal principles established

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  • On a rule 5(2)(b) stay application, the applicant need only show a reasonable argument in support of the appeal, not that it will definitely succeed, and must additionally show the appeal would be rendered nugatory if stay is refused.

Court orders

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  1. 1.The application for stay of execution is dismissed
  2. 2.Costs of the application awarded to the respondents

The bench

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One judgment of the whole court — no separate or dissenting opinions.

EO
majority
PW
majority
WD
majority
On appeal from
High Court of Kenya at Nairobi
H.C.C.C. No. 73 of 2000
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules (application for stay of execution pending appeal)

Relief refused

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Stay of execution of the High Court judgment and decree pending appeal

The court was not persuaded the appeal's success would be rendered nugatory; no basis for feared alienation and any loss is compensable in damages

p. 3

Maintenance of status quo / deposit of title deed pending appeal

Fell with the failure to establish the nugatory aspect

Costs

Application dismissed with costs to the respondents

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

In the result, we order that the application be and is hereby dismissed with costs to the respondents.
p. 3Final orders - dismissal of stay application
We are not persuaded either, that the applicant will suffer loss which is incapable of recompense in damages in the unlikely event that the property is alienated.
p. 3Nugatory-ness test - adequacy of damages
It is sufficient if the applicant shows that he has serious questions of law for the submission to the court on the hearing of the appeal.
p. 2Arguability threshold under rule 5(2)(b)

Issues in the judgment

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minor

The coram lists only judges' names without signature alignment for Waki and Deverell JJA; the single judgment does not name an author, so authorship is recorded as unattributed

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, "BENJA PROPERTIES LIMITED v H.H. DR. SYEDNA MOHAMED BURHANNUDDIN SAHEB & 2 others [2007] KECA 82 (KLR)", Case Analysis (2007). Civil Application Nai 106 of 2007. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2007/82/eng@2007-07-20

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