Viridiana E. Omondi & 34 others v National Housing Corporation [2011] KECA 138 (KLR)
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the applicants have an arguable intended appeal under Rule 5(2)(b)
- 2.Whether the intended appeal would be rendered nugatory if the injunction pending appeal is not granted
Key legal issues
#Whether the intended appeal was arguable
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.
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).
Whether the intended appeal would be rendered nugatory without an injunction
The appeal would not be rendered nugatory because the applicants had claimed damages in their suit and damages would be an adequate remedy.
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.
Legal principles established
#- 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
#- 1.The application by Notice of Motion dated under Rules 5(2)(b) and 47 of the Court of Appeal Rules is dismissed
- 2.No orders for costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- 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
#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
Costs
We make no orders for costs.
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.
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.
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.
Issues in the judgment
#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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.