KEBIRIGO CONSUMERS CO-OPERATIVE SOCIETY V DIOCESE OF KISII KIENYA, E. AFRICA [2012] KECA 134 (KLR)
The bottom line
#Kenya's Court of Appeal refused to protect a co-operative's land during its appeal because demolition threats would not make winning the appeal pointless.
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
- 2.Whether, if the injunction is not granted, the success of the intended appeal will be rendered nugatory
Key legal issues
#Test for relief under rule 5(2)(b) of the Court of Appeal Rules
The applicant must satisfy both the arguability of the appeal and the nugatory-aspect test; failure on either limb is fatal to the application.
The court restated the settled principles from Ishmael Kagunyi Thande v Housing Finance of Kenya Ltd, that the jurisdiction is original and discretionary and guided by two settled principles. The applicant need not prove the appeal will succeed, only that it is arguable, but must also demonstrate that the intended appeal would be rendered nugatory without the interim relief sought.
Whether the appeal would be rendered nugatory without the injunction
Alleged intentions to demolish structures, collect rent and evict occupants do not render the appeal nugatory where the respondent does not intend to alienate, charge or dispose of its interest in the property.
The court found that the applicant had not alleged anywhere in the application or supporting affidavit that the respondent intended to dispose of, alienate or charge its interest in the suit premises. The property would therefore still be in existence and registered in the respondent's name when the appeal was determined, so the successful applicant could be restored and the appeal would not be rendered nugatory.
Whether the court should comment on the merits of the intended appeal
Where the appeal has already been filed, the court on a rule 5(2)(b) application refrains from commenting on the merits to avoid embarrassing the bench that will hear the appeal; it may assume arguability in the absence of contrary contention.
The respondent neither filed a replying affidavit nor attended the hearing, and therefore did not contend that the appeal was not arguable. Because the appeal (Civil Appeal No. 9 of 2010) had already been filed, the court considered it sufficient, for purposes of the application, to assume arguability without expressing any view on the merits.
Legal principles established
#- An applicant under rule 5(2)(b) must satisfy the twin principles that the appeal or intended appeal is arguable and that, unless the order is granted, the success of the appeal will be rendered nugatory.
Court orders
#- 1.The motion dated 28th July, 2011 is dismissed with no order as to costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Kisii
- HCCC No. 925 of 1989
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules (injunction pending appeal)
Relief refused
#Injunction restraining the respondent from entering, demolishing, constructing on or interfering with land parcel No. West Mugirango/Bonyamatuta/1051 pending the hearing and determination of Civil Appeal No. 9 of 2010
The applicant failed to demonstrate that the appeal would be rendered nugatory if the injunction was not granted, since the property would remain in existence and registered in the respondent's name
Costs
No order as to 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.
For an applicant to succeed he must not only show that his appeal or intended appeal is arguable, but also that unless the court grants him an injunction or stay as the case may be, the success of that appeal will be rendered nugatory.
Thus, the applicant has not shown that the appeal would be rendered nugatory unless the application is allowed.
In the result, we dismiss the motion dated 28th July, 2011, with no order as to costs.
Issues in the judgment
#Githunguri and J.K. Industries authorities appear only within the quotation adopted from the Kagunyi case, so their treatment as cited by the court rather than a party is inferred from the court's adoption of that quotation.
The intended appeal is stated as filed in the Sub-Registry at Kisumu on 5th March 2010 in the prayer, but the header refers to an appeal lodged in Kisumu against a High Court decision dated 19th March 2001, while the text also records the Society filing a High Court application on 29th July 1998 which Wambilyangah, J dismissed; the internal chronology is not fully reconciled on the face of the ruling.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "KEBIRIGO CONSUMERS CO-OPERATIVE SOCIETY V DIOCESE OF KISII KIENYA, E. AFRICA [2012] KECA 134 (KLR)", Case Analysis (2012). Civil Application 202 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2012/134/eng@2012-03-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.