Moses Kariuki Wachira v Joseph Muriithi Kanyita & 3 others [2011] KECA 309 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed it can issue an injunction—even after a High Court refuses one—to protect disputed land while an appeal is decided.
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 would be rendered nugatory if the orders sought are not granted
- 3.Whether the Court has jurisdiction to grant an injunction under rule 5(2)(b) where the order below was a dismissal of an injunction application
Key legal issues
#Arguability of the intended appeal
The draft memorandum of appeal disclosed arguable grounds, in particular the contention that the superior court gave final orders in an interlocutory application.
The Court applied the established rule 5(2)(b) test: first, whether the intended appeal is arguable; second, whether it would be rendered nugatory if stay is not granted. On the material before it, the Court found the grounds in the draft memorandum not frivolous, singling out the ground concerning the finality of orders issued by the superior court in an interlocutory application as arguable for the purposes of the application.
Nugatory value and preservation of status quo
Because the 1st and 2nd respondents' means were unestablished and the transfer and charge instruments remained unregistered and could be registered at any time, the appeal would be rendered nugatory absent preservation.
The Court reasoned that failure to restrain further transactions might place the property beyond the applicant's reach, for example if a third purchaser for value formally came into the picture, and that the appropriate order pending the hearing of the appeal on merit was preservation of the status quo rather than a bare stay of the negative order.
Jurisdiction to grant an injunction under rule 5(2)(b)
The Court has jurisdiction to grant an injunction under rule 5(2)(b), being the second remedy conferred by the rule, notwithstanding the respondents' contention that there was nothing to restrain.
The respondents contended the Court had no jurisdiction to stay a negative order dismissing an injunction application. The Court reproduced rule 5(2) and held that since the applicant had sought both a stay of execution and an injunction, the Court could grant the injunction, which is expressly one of the remedies available under the rule. It therefore granted an injunction in terms of prayer one of the application.
Legal principles established
#- Under rule 5(2)(b) of the Court of Appeal Rules, where a notice of appeal has been lodged, the Court may order a stay of execution, an injunction or a stay of further proceedings on such terms as it thinks just; the injunction remedy is available even where the order sought to be appealed was a dismissal of an injunction application.
Court orders
#- 1.An injunction granted in terms of prayer one (1) of the application dated 3rd August 2009
- 2.Costs of the application to abide the outcome of the intended appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- H.C.C.C. No. 423 of 2009
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules
Relief refused
#Stay of execution of the High Court ruling and order dated 24th July 2009
The order below was a negative order dismissing an injunction application; instead of a stay, the Court preserved the status quo by granting an injunction under its rule 5(2)(b) jurisdiction
Costs
Costs of the application to abide the outcome of 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.
In the circumstances the order which commends itself is the preservation of the status quo pending the hearing of the appeal on merit.
It is therefore clear that we have the jurisdiction to grant an injunction which is the second remedy as per the rule.
We accordingly grant an injunction in terms of prayer one (1) of the application dated 3rd August 2009. Costs of the application to abide the outcome of the intended appeal.
It is our view that the grounds set out in the draft memorandum of appeal are not frivolous.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Moses Kariuki Wachira v Joseph Muriithi Kanyita & 3 others [2011] KECA 309 (KLR)", Case Analysis (2011). Civil Application No. Nai 237 of 2009 (UR 166/2009). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2011/309/eng@2011-03-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.