Haithar Haji Abdi & another v Southdowns Developers Limited [2015] KECA 592 (KLR)
The bottom line
#Kenya's Court of Appeal refused to pause a High Court judgment because the land would still exist—or money could compensate—even if the appeal succeeded.
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 applicants had presented an arguable appeal as required under Rule 5(2)(b) of the Court of Appeal Rules
- 2.Whether the intended appeal would be rendered nugatory if stay of execution pending appeal was not granted
Key legal issues
#Arguable appeal under Rule 5(2)(b)
The applicants demonstrated arguable grounds, including the alleged late incorporation of the respondent and the licensing of the auctioneer, which could be argued on appeal.
The Court noted the applicants claimed fraud in that the respondent was incorporated in 2013 merely to take the suit land, and the draft memorandum raised the ground that the auctioneer was not licensed in 1991. Even though the High Court found the auctioneer licensed and the respondent incorporated in 1989, those points were arguable and not frivolous; whether they succeed is for the full hearing.
Nugatory value of the intended appeal
The applicants failed the second limb because the appeal would not be rendered nugatory without a stay.
The Court found there was no proof the suit property had been alienated to a third party despite counsel's assertion from the bar; the land would remain available if the appeal succeeded, and if it had been alienated, compensation by damages could remedy the position. The first limb alone is insufficient for a stay under Rule 5(2)(b).
Legal principles established
#- An applicant under Rule 5(2)(b) must satisfy the twin conditions of an arguable appeal and that the appeal will be rendered nugatory if stay is not granted; an arguable appeal need not be one that will succeed, only one that is not frivolous.
- Whether an appeal will be rendered nugatory depends on whether what is sought to be stayed is reversible, or if not reversible, whether damages will reasonably compensate the aggrieved party.
Court orders
#- 1.Dismissal of the applicants' notice of motion dated 1st July, 2014 seeking stay of execution pending the intended appeal
- 2.Applicants to pay the costs of the application to the respondent company
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. 1389 of 2004
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules
Relief refused
#Stay of execution of the High Court's order of 20th June, 2014 pending the lodgment, hearing and determination of an intended appeal
Although the applicants demonstrated arguable grounds, they failed to show that the appeal would be rendered nugatory without a stay since the suit property would remain available or damages could compensate.
Costs
The applicants to pay the costs of the application to the respondent company.
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.
So with that, we dismiss this application and order that the applicants pay its costs to the respondent company.
an arguable appeal need not be one that will succeed at the hearing. It needs only be one that raises an issue that can be fully be argued before the Court and that the same is not frivolous
Whether or not an appeal will be rendered nugatory depends on whether or not what is sought to be stayed if allowed to happen is reversible; or if it is not reversible where damages will reasonably compensate the party aggrieved.
Issues in the judgment
#The judgment records counsel for the respondent asserting from the bar that the suit property had been sold to a third party, but the Court found no proof of alienation when deciding nugatory value; the discrepancy is noted on the record.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Haithar Haji Abdi & another v Southdowns Developers Limited [2015] KECA 592 (KLR)", Case Analysis (2015). Civil Application No. NAI. 160 of 2014 (UR.124/2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/592/eng@2015-07-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.