Samson Okun Orinda v Ayub Muthee M’igweta & 2 others [2010] KECA 153 (KLR)
The bottom line
#Kenya's Court of Appeal stopped an eviction until an appeal is heard, confirming the two-part test for preserving property pending appeal.
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 intended appeal is arguable (not frivolous)
- 2.Whether the intended appeal, if successful, would be rendered nugatory unless an injunction or stay is granted
Key legal issues
#Twin test for relief under rule 5(2)(b)
The applicant must demonstrate that the intended appeal is arguable and that it would be rendered nugatory if the order sought is not granted.
The court adopted the Silverstein v Chesoni formulation: an applicant must show the intended appeal is not frivolous and that, unless the stay or injunction is granted, a successful appeal would be rendered nugatory. The court found the treatment of the compensation claim for developments, viewed against the respondents' own replying affidavit seeking conditional relief, raised arguable points, and that eviction without refund or ventilation of compensation would render the appeal nugatory.
Arguability of intended appeal
The intended appeal was arguable because the learned Judge refused compensation for the applicant's developments while the respondents themselves appeared to seek variation of the very contract she held frustrated.
The court crystallised an arguable point from the tension between the Judge's finding that the contract was frustrated and the respondents' affidavit seeking that possession be conditioned on excision of the developed portion and non-payment of the decretal sum. That inconsistency, together with the refusal to award compensation for developments, sufficed to establish arguability, which is a low threshold of one arguable point.
Nugatory value of the appeal
Eviction before refund of the decretal sum and without determination of the compensation claim would render the appeal nugatory because the property would be at risk of disposal.
The respondents admitted non-compliance with the order to refund Kshs 261,000/=. The court reasoned that evicting the applicant before payment and before the compensation issue was ventilated would put the property out of his reach and at risk of disposal by the respondents, satisfying the second limb of the rule 5(2)(b) test.
Legal principles established
#- An applicant under rule 5(2)(b) must satisfy both the arguability of the intended appeal and that the appeal would be rendered nugatory without the stay or injunction; both requirements must be proved.
Court orders
#- 1.Temporary injunction granted restraining the respondents or their agents from selling, moving into or interfering with the interest comprised in parcel No. NTIMA/IGOKI/4218 situated in Meru pending the hearing and determination of an intended appeal
- 2.Costs of the application to be in the intended appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Meru
- H.C.C.C. No. 72 of 1995
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules
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.
We accordingly grant the applicant a temporary injunction to restrain the respondents or agents from selling or moving into or interfering with the interest comprised in the suit premises No NTIMA/IGOKI/4218 situated in Meru pending the hearing and determination of an intended appeal and we further order that the costs of this application be in the intended appeal.
An applicant seeking a stay under rule 5 (2) (b) of the Court's Rules has to satisfy the Court that his intended appeal was arguable, that is, that the intended appeal was not frivolous, and that unless the order of stay were granted, the intended appeal if successful, would be rendered nugatory.
This aspect, when viewed in the background of what the respondents urged in opposition shall alone constitute an arguable point which would be rendered nugatory if no injunction is granted to restrain the respondents from evicting the applicant from the suit property.
We believe that, an eviction of the applicant from the property prior to payment to him, not only of that sum but without ventilation of the issue whether compensation is payable for his development, would put the property out of his reach and at risk of disposal by the respondents thereby rendering the applicant's appeal nugatory.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Samson Okun Orinda v Ayub Muthee M’igweta & 2 others [2010] KECA 153 (KLR)", Case Analysis (2010). Civil Application No. 356 of 2009. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2010/153/eng@2010-07-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.