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Court of AppealPartially AllowedCivil Application No. Nai 237 of 2009 (UR 166/2009)

Moses Kariuki Wachira v Joseph Muriithi Kanyita & 3 others [2011] KECA 309 (KLR)

Court of Appeal of Kenya
25 March 2011
2,323 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~9 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This was a single-judge-ruled application under rule 5(2)(b) of the Court of Appeal Rules by Captain Moses Kariuki Wachira seeking a stay of execution of, and an injunction pending appeal against, a ruling of the High Court at Nairobi (Kimaru, J.) dated 24th July 2009 in HCCC No. 423 of 2009 dismissing his injunction application with costs. The underlying dispute concerns L.R. Nairobi/Block/94/170 Nyari, which the applicant claims to own beneficially, having purchased it and directed its transfer to the 2nd respondent as his nominee. The applicant alleged that a power of attorney and subsequent transfers were fraudulently procured, and that a pending transfer to the 3rd respondent and a charge to the 4th respondent (the bank) could be registered at any time, placing the property beyond his reach. The respondents argued the application was incompetent because the Court could not stay a negative order, and that no trust was registered under section 39 of the Registered Land Act. The Court found the intended appeal arguable, notably on the ground that the superior court had issued final orders in an interlocutory application. On nugatory value, it noted the respondents' means were unestablished and the transfer and charge remained unregistered, so preservation of the status quo was warranted. It held it had jurisdiction to grant an injunction under rule 5(2)(b) and granted an injunction in terms of prayer one of the application dated 3rd August 2009, with costs of the application to abide the outcome of the intended appeal.

Questions the Court framed

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

  1. 1.Whether the intended appeal is arguable (not frivolous)
  2. 2.Whether the intended appeal would be rendered nugatory if the orders sought are not granted
  3. 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

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01

Arguability of the intended appeal

Holding

The draft memorandum of appeal disclosed arguable grounds, in particular the contention that the superior court gave final orders in an interlocutory application.

Reasoning

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.

p. 4
02

Nugatory value and preservation of status quo

Holding

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.

Reasoning

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.

p. 4
03

Jurisdiction to grant an injunction under rule 5(2)(b)

Holding

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.

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 1.An injunction granted in terms of prayer one (1) of the application dated 3rd August 2009
  2. 2.Costs of the application to abide the outcome of the intended appeal

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 Nairobi
H.C.C.C. No. 423 of 2009
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules

Relief refused

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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

p. 4

Costs

Costs of the application to abide the outcome of the intended appeal

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.

In the circumstances the order which commends itself is the preservation of the status quo pending the hearing of the appeal on merit.
p. 4Preservation of status quo pending appeal
It is therefore clear that we have the jurisdiction to grant an injunction which is the second remedy as per the rule.
p. 4Rule 5(2)(b) jurisdiction to grant injunction
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.
p. 4Final orders
It is our view that the grounds set out in the draft memorandum of appeal are not frivolous.
p. 4Arguability test

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, "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.