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Case Brief · caselaw.co.ke
Court of AppealPartially AllowedCivil Application No. NAI 55 of 2018

Attain Advisory Consultants v Nairobi City County & 3 others [2018] KECA 519 (KLR)

Court of Appeal
8 June 2018
1,756 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal stopped a land deal that would have stripped a buyer of property rights without their involvement, protecting the buyer pending appeal.

What this practically means

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Executive summary

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The applicant, Attain Advisory Consultants, purchased LR No. 209/403/3 at Adams Arcade in a public auction conducted pursuant to orders of the Acting Principal Magistrate for failure by the 2nd to 4th respondents to settle land rates due to the 1st respondent, Nairobi City County. On 22nd February 2018, Obaga, J. of the Environment and Land Court adopted, as an order of the court, a consent dated 20th December 2017 reached between the respondents themselves. The consent set aside the lower court proceedings and auction, reverted the property's title to the respondents, and provided for refund of the purchase price - all without the applicant's participation. Aggrieved, the applicant lodged Civil Appeal No. 94 of 2018 and moved the Court of Appeal under Rule 5(2)(b) for stay and injunctive relief pending appeal. Applying the twin principles of arguability and nugatory effect as summarised in Stanley Kangethe Kinyanjui v Tony Ketter & 5 Others, the Court found a single bona fide arguable ground sufficient: the error, if any, of adopting a consent affecting the applicant's proprietary rights without its involvement. On the nugatory limb, the Court accepted that registration of the respondents and refund of the purchase price would render the appeal otiose, and that these were real rather than idle apprehensions. The Court, however, noted that the impugned decision made no orders capable of being stayed, and instead granted an injunction restraining the respondents in terms of prayer 3 of the motion dated 2nd March 2018 pending the hearing and determination of the appeal. Costs of the application were reserved to the appeal. The Court emphasized that on a Rule 5(2)(b) application it must not make definitive findings of fact or law.

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
  2. 2.Whether the appeal would be rendered nugatory if stay/injunction is not granted

Key legal issues

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01

Arguability of the intended appeal

Holding

The single condensed ground - that the Judge erred in adopting a consent affecting the applicant's proprietary rights without its involvement - was an arguable point sufficient for the arguability limb

Reasoning

The applicant was not a party to the consent adopted as an order of the court, yet the consent divested it of ownership of LR No. 209/403/3. Even one bona fide arguable ground satisfies the first limb; an arguable appeal need not succeed, only be non-frivolous and deserving of full argument.

p. 2
02

Nugatory aspect

Holding

The appeal would be rendered nugatory if the respondents were registered as owners and the purchase price refunded before the appeal was heard; real, not idle, apprehension was established

Reasoning

Execution of the consent order would change the ownership and character of the property irreversibly during the pendency of the appeal. Reversibility and compensability in damages are the touchstones; here registration of the respondents and refund of the purchase price would render the appeal otiose.

p. 2
03

Nature of Rule 5(2)(b) jurisdiction

Holding

Rule 5(2)(b) empowers the Court to grant stay of execution, stay of proceedings or injunction, guided by the twin principles in Stanley Kng'ethe Kinyanjui v Tony Ketter

Reasoning

The jurisdiction is discretionary and interlocutory in character; the Court applied the twin principles of arguability and nugatory effect as summarised in Stanley Kangethe Kinyanjui v Tony Ketter & 5 Others, and declined to make definitive findings at that stage.

p. 2

Legal principles established

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  • An application under Rule 5(2)(b) must satisfy both twin principles of arguability and nugatory effect
  • A court hearing a Rule 5(2)(b) application must not make definitive findings of fact or law
  • A single bona fide arguable ground of appeal suffices on the arguability limb
  • An arguable appeal need not be one that must succeed, only one that is not frivolous
  • Nugatory effect depends on whether the impugned action is reversible or compensable in damages
  • The purpose of a stay or injunction is preservation of the subject matter pending appeal

Court orders

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  1. 1.Injunction pending the hearing and determination of the appeal restraining the respondents in terms of prayer 3 of the notice of motion dated 2nd March, 2018
  2. 2.Costs of the application to be in the appeal

The bench

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One judgment of the whole court — no separate or dissenting opinions.

William Ouko
W. OukoJA
Currently serving
majority
majority
majority
On appeal from
High Court of Kenya at Nairobi (Environment and Land Court)
ELC Misc. No. 144 of 2014
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules

Relief refused

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Stay of execution of the ruling adopting the consent order

The impugned decision did not make orders capable of being stayed, the court instead granting an injunction

p. 2

Costs

Costs of this application shall be in the 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.

The applicant has satisfied the two limbs and is entitled to an order of injunction.
p. 3disposition - entitlement to injunction
Pending the hearing and determination of the appeal, the respondents are restrained in terms of prayer 3 of the notice of motion dated 2 nd March, 2018. Costs of this application shall be in the appeal.
p. 3final orders
An application for stay must satisfy the court on both of the twin principles.
p. 2twin principles under Rule 5(2)(b)
It is settled that even a single bona fide arguable ground of appeal is sufficient.
p. 2arguability
It will depend on whether or not what is sought to be stayed if allowed to happen is reversible; or if it is not reversible whether damages will reasonably compensate the party aggrieved.
p. 2nugatory test

Issues in the judgment

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minor

The coram prints the third judge's name as 'ASIKE – MAKHANDIA' without initials, with a dash, while the other judges have initials; rendered consistently as printed

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, "Attain Advisory Consultants v Nairobi City County & 3 others [2018] KECA 519 (KLR)", Case Analysis (2018). Civil Application No. NAI 55 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/519/eng@2018-06-08

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.