Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealDismissedCivil Application No. NAI. 160 of 2014 (UR.124/2014)

Haithar Haji Abdi & another v Southdowns Developers Limited [2015] KECA 592 (KLR)

Court of Appeal of Kenya
3 July 2015
1,610 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

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

#
This is a single-judgment ruling of the Court of Appeal at Nairobi (Okwengu, Mwera and G. B. M. Kariuki, JJA) delivered on 3rd July 2015 on a notice of motion dated 1st July 2014 brought under Rule 5(2)(b) of the Court of Appeal Rules. The applicants, Haithar Haji Abdi and Abdi Haithar Haji, sought stay of execution of the order of the High Court (Mutungi, J.) of 20th June 2014, which had dismissed their application to review the judgment of 29th April 2013 in H.C.C.C No. 1389 of 2004 concerning LR No. 13154 Langata Karen, Nairobi. Before the High Court, the applicants had claimed discovery of new matter: that the respondent company was not registered when it bought the suit property at a 1991 auction (alleging it was only incorporated on 5th November 2013) and that the auctioneer, James Kariuki Ng'ang'a t/a Ndarugu Merchants, was not licensed. The High Court, relying on the evidence of an Assistant Registrar of Companies, found the respondent was incorporated on 9th November 1989 and dismissed the review application. On the stay application, the Court of Appeal applied the twin Rule 5(2)(b) tests. It accepted that the applicants had arguable grounds - the alleged late incorporation and the auctioneer's licensing - but held the appeal would not be rendered nugatory without a stay, since there was no proof the property had been alienated and damages could compensate if it had. The application was dismissed with costs to the respondent company.

Questions the Court framed

#

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

  1. 1.Whether the applicants had presented an arguable appeal as required under Rule 5(2)(b) of the Court of Appeal Rules
  2. 2.Whether the intended appeal would be rendered nugatory if stay of execution pending appeal was not granted

Key legal issues

#
01

Arguable appeal under Rule 5(2)(b)

Holding

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.

Reasoning

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.

p. 3
02

Nugatory value of the intended appeal

Holding

The applicants failed the second limb because the appeal would not be rendered nugatory without a stay.

Reasoning

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).

p. 3

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. 1.Dismissal of the applicants' notice of motion dated 1st July, 2014 seeking stay of execution pending the intended appeal
  2. 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.

majority
majority
majority
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.

p. 3

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.
p. 3Final orders - dismissal of the stay application with costs
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
p. 3Test for arguability under Rule 5(2)(b)
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.
p. 3Test for nugatory value of an intended appeal

Issues in the judgment

#
minor

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.