Brookside Studios Ltd v Nduachi Company Limited & 2 others [2011] KECA 365 (KLR)
The bottom line
#Kenya's Court of Appeal protected a property owner's rights during an appeal, blocking any transfer or interference with the disputed land until the case 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 and not frivolous
- 2.Whether the success of the intended appeal would be rendered nugatory if the orders sought are not granted
Key legal issues
#Twin test for relief under Rule 5(2)(b)
The applicant must demonstrate both that the intended appeal is arguable and that it would be rendered nugatory if stay/injunction is not granted.
The Court restated the established test, citing Bob Morgan Systems Ltd v Jones and Ruben & 9 Others v Nderito. It considered the record and the submissions adopted from the companion application, found the intended appeal raises arguable issues, and found that refusing the prayers would render any success on appeal nugatory, entitling the applicant to relief.
Identity with companion application
Where two Rule 5(2)(b) applications arise from the same facts and are heard together with counsel adopting submissions, a ruling in one governs the other.
Counsel in both applications were the same and expressly adopted their submissions in Civil Application No. Nai. 280 of 2010 (Yellow Horse Inn Ltd v Nduachi Company Ltd). The Court found the applicant stood in the same position as the applicant in that case and, the applications being 'indeed, the same except in respect of some of the orders sought', granted this one on that basis.
Legal principles established
#- An applicant under Rule 5(2)(b) must satisfy the Court that the intended appeal is arguable and not frivolous, and that if successful it will be rendered nugatory unless the orders sought are granted.
Court orders
#- 1.An injunction restraining the respondents from alienating, entering into, subdividing, taking possession of or interfering with L.R. No. 209/11803/3, or making any document of title or lease in favour of the 1st respondent or any other person, pending the hearing and determination of the intended appeal (prayer 2)
- 2.A temporary mandatory injunction directing the 2nd and 3rd respondents to reinstate the applicant's name as rateable owner in the valuation and rates records and to call for cancellation of any document purporting to convey ownership to the 1st respondent, pending the hearing and determination of the intended appeal (prayer 3)
- 3.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.ELC. No. 346 of 2009
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules (application for injunction pending intended appeal)
Relief refused
#Prayer 4 - costs of the application
Costs were not awarded immediately but made to abide the outcome of the intended appeal
Costs
Costs of the application shall 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.
it is upon the applicant to satisfy this Court not only that the intended appeal is arguable, and is not frivolous, but also that the intended appeal, if successful, will be rendered nugatory if the orders sought are not granted
In view of the foregoing and having been satisfied that the applicant's intended appeal raises arguable issues and is not frivolous; and that if we refuse to grant the prayers sought the success of the intended appeal would be rendered nugatory, we accordingly grant the application in terms of prayers 2 and 3 of the application dated 6th December, 2010.
Costs of the application shall abide the outcome of the intended appeal.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Brookside Studios Ltd v Nduachi Company Limited & 2 others [2011] KECA 365 (KLR)", Case Analysis (2011). Civil Application No. Nai. 281 of 2010 (UR. 198/2010). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2011/365/eng@2011-03-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.