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Court of AppealDismissedCivil Application No. NAI. 44 of 2011 (UR. 28/2011)

Viridiana E. Omondi & 34 others v National Housing Corporation [2011] KECA 138 (KLR)

Court of Appeal of Kenya
29 July 2011
1,429 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Court of Appeal refused to stop evictions because the tenants had no arguable appeal and could be compensated with money damages instead.

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 (Tunoi, O'Kubasu and Aganyanya, JJ.A.) on a Notice of Motion under Rules 5(2)(b) and 47 of the Court of Appeal Rules seeking an injunction to restrain the National Housing Corporation from evicting 35 applicants from residential rental houses in the Homa Bay Provincial Housing Scheme pending an intended appeal against the ruling of Makhandia, J. in H.C.C.C. No. 182 of 2010. The applicants were monthly tenants under oral tenancies who received notices to vacate after the houses were advertised for sale in 2007, having declined first priority to purchase. The High Court had dismissed their application for a temporary injunction, finding they had not been candid in concealing prior unsuccessful litigation over the same houses (Kisii HCCC No. 48 of 2008). The application proceeded unopposed under Rule 56(2) as there was no appearance for the respondent. Applying the well-established twin test for injunctions pending appeal - an arguable appeal and the nugatory aspect - the court found no arguable appeal given the applicants' conduct and history of concealed litigation, and held that the appeal would not be rendered nugatory because damages were claimed in the suit and would be an adequate remedy. The application was dismissed with no orders for costs. This decision binds subordinate courts on the Rule 5(2)(b) principles it restates.

Questions the Court framed

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

  1. 1.Whether the applicants have an arguable intended appeal under Rule 5(2)(b)
  2. 2.Whether the intended appeal would be rendered nugatory if the injunction pending appeal is not granted

Key legal issues

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01

Whether the intended appeal was arguable

Holding

The intended appeal was not arguable; the applicants had twice failed in injunction applications by failing to disclose prior related litigation and had not challenged the respondent's right to sell.

Reasoning

The applicants, former tenants given first priority to purchase the houses, failed to pay the purchase price, defied notices to quit, and engaged in protracted litigation while twice seeking injunctions without disclosing the earlier suit. Given this history, the court found no arguable appeal and no basis to exercise its discretion under Rule 5(2)(b).

p. 3
02

Whether the intended appeal would be rendered nugatory without an injunction

Holding

The appeal would not be rendered nugatory because the applicants had claimed damages in their suit and damages would be an adequate remedy.

Reasoning

The court assessed the second limb of the Rule 5(2)(b) test and found that since the applicants themselves had pleaded general damages in the main suit, an award of damages would suffice if they ultimately succeeded, so the refusal of an injunction would not destroy the substance of the appeal.

p. 3

Legal principles established

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  • An applicant under Rule 5(2)(b) must satisfy the court that the intended appeal is arguable (not frivolous) and that the appeal or intended appeal would be rendered nugatory if the order sought is not granted.
  • Where an applicant appears and the respondent fails to appear, a Court of Appeal application may proceed in the absence of the respondent under Rule 56(2).

Court orders

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  1. 1.The application by Notice of Motion dated under Rules 5(2)(b) and 47 of the Court of Appeal Rules is dismissed
  2. 2.No orders for costs

The bench

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

majority
majority
majority
On appeal from
High Court of Kenya at Kisii
H.C.C.C. No. 182 of 2010
Jurisdiction invoked
Rules 5(2)(b) and 47 of the Court of Appeal Rules

Relief refused

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Injunction restraining the respondent from evicting the applicants from their respective rented houses pending the hearing and determination of the intended appeal

The applicants failed to demonstrate an arguable appeal and the appeal would not be rendered nugatory since damages were an adequate remedy

p. 3

Costs

We make no orders for costs.

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.

the Court must be satisfied that the intended appeal is an arguable one, that is, that it is not frivolous, and that if an order of stay or injunction as the case may be is not granted, the appeal or intended appeal would be rendered nugatory.
p. 3Rule 5(2)(b) twin test
That being our view of the matter, it follows that this application lacks merit and we order that the same be and is hereby dismissed. We make no orders for costs.
p. 3Disposition

Issues in the judgment

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minor

The judgment inconsistently dates the High Court ruling: the header says 21st January, 2011 while the applicant's grounds say 31st January, 2011.

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, "Viridiana E. Omondi & 34 others v National Housing Corporation [2011] KECA 138 (KLR)", Case Analysis (2011). Civil Application No. NAI. 44 of 2011 (UR. 28/2011). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2011/138/eng@2011-07-29

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