Duncan Nduracha v Fuad M. Mohammed & 2 others [2011] KECA 254 (KLR)
The bottom line
#Kenya's Court of Appeal found the appeal arguable but refused a stay, instead ordering monthly rent payments while the occupier stays put pending the 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, that is, not frivolous
- 2.Whether the success of the intended appeal, were it to succeed, would be rendered nugatory by refusal of the application
- 3.Whether the three prayers sought - stay of execution, injunction restraining the first respondent from taking possession, and a mandatory injunction evicting the first respondent - can be granted
Key legal issues
#Arguability of the intended appeal
The intended appeal is arguable because the High Court judge appears to have discussed matters with some parties without clear evidence as to whether the other parties were present, and in respect of the presence of necessary and interested parties.
Confining itself to the matters, submissions, record and judgment before the superior court, the Court found the intended appeal not frivolous. The apparent ex parte discussion in chambers and the alleged failure to ensure all necessary parties were before the judge were, on the face of it, arguable points. Only one arguable point is required, and such a point need not ultimately succeed; it need only require ventilation.
Whether refusal of the orders sought would render the appeal nugatory, and the appropriate balancing order
Although all three prayers failed, the Court crafted a balancing order requiring the first respondent to pay monthly mesne profits into a joint interest-earning account as a condition of continuing occupation pending appeal.
The stay and injunction prayers were overtaken by events since the High Court orders had been executed and the first respondent was in occupation; a mandatory injunction evicting him was exceptional relief not warranted here. Nonetheless, doing a balancing act, the applicant, currently out of the premises, would lose considerable mesne profits if no order contained the situation; hence the conditional monthly payment of Ksh.60,000/-.
Legal principles established
#- On a rule 5(2)(b) application the applicant must demonstrate that the intended or filed appeal is arguable (not frivolous) and that, were it to succeed, its success would be rendered nugatory by refusal of the application
- An arguable point need not be a point that will succeed; a single arguable point suffices and it is a point requiring ventilation before the court
- In deciding a rule 5(2)(b) application the court exercises unfettered discretionary powers which cannot be exercised capriciously or on the whims of the court
Court orders
#- 1.The first respondent to pay Ksh.60,000/- per month as mesne profits into an interest earning account in a reputable bank in the names of the firms of both advocates for the parties, with effect from 1st June 2011
- 2.Subject to that payment, the first respondent to continue in occupation of the suit premises till the intended appeal is heard and determined
- 3.Costs of the application to be in the intended appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the judgment
Wrote the judgment
- On appeal from
- High Court of Kenya at Mombasa
- H.C. MISC. APP. 1 OF 2011
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules (application for stay of execution and injunctive relief pending an intended appeal); Order 53(1) of the Civil Procedure Rules underpins the proceedings below
Relief refused
#Stay of execution of the High Court's eviction and reinstatement order
The orders had already been executed and the first respondent was in constructive occupation of the premises
Injunction restraining the first respondent from taking possession or occupation of the suit premises
What was to be injuncted had already taken place
Mandatory injunction to evict the first respondent from the premises
Such an order can only be granted in very exceptional cases, and this was not one of them
Costs
The costs of this application to be in the intended appeal.
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.
Only one arguable point is required. We need to make it clear that an arguable point need not be a point that will succeed. It is a point that will require ventilation before the court whether it eventually succeeds or not.
The applicant has to demonstrate that the intended appeal or the appeal, where one has been filed, is arguable, that is that it is not frivolous. Secondly, he has to demonstrate also that were the appeal or the intended appeal, as the case may be, to succeed, such success would be rendered nugatory by our refusal to grant the application.
Subject to the first respondent paying Ksh.60,000/- as mesne profits into an interest earning account in a reputable bank in the names of the firms of both advocates for the parties, with effect from 1 st day of June 2011, the first respondent will continue in occupation till the intended appeal is heard and determined.
The costs of this application to be in the intended appeal.
Issues in the judgment
#The respondent insurer is referred to as 'UAP Provisional Insurance Co. Ltd' in the judgment; this may be a typographical rendering of the insurer's name, recorded as printed.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Duncan Nduracha v Fuad M. Mohammed & 2 others [2011] KECA 254 (KLR)", Case Analysis (2011). Civil Application No. NAI. 24 of 2011 (UR. 17/2011). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2011/254/eng@2011-05-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.