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Court of AppealDismissedCivil Application No. NAI 2 of 2017 (UR 2 of 2017)

Nelson Mutai v Benson Kathunge [2018] KECA 674 (KLR)

Court of Appeal of Kenya
20 April 2018
1,795 words in judgment
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The bottom line

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Kenya's Court of Appeal ruled you cannot dodge a failed application by relabelling it, nor seek urgent relief while ignoring your own pending appeal.

What this practically means

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Executive summary

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The Court of Appeal (Waki, Musinga and Kiage, JJ.A) dismissed an application by Nelson Mutai, an advocate, seeking an injunction under Rule 5(2)(b) of the Court of Appeal Rules to restrain Benson Kathunge from arresting, detaining or proclaiming against him pending the hearing of an appeal against a ruling of Koome, J. delivered on 22nd October 2010. The underlying dispute concerned a Sh. 3.25 million deposit held by the applicant as stakeholder in a frustrated land sale; Koome, J. ordered release of Sh. 2.9 million to the respondent. A differently constituted bench of the same Court had, by ruling of 9th May 2014, already refused stay of execution, finding the appeal not demonstrably arguable and no nugatory risk established. The applicant had also twice approached the High Court for similar relief (before Ogola, J. in 2015 and again in December 2016), and Ogola, J. had granted installment-payment orders in March 2016 which the applicant neither challenged nor complied with. Holding that the application was either res judicata or an abuse of court process - the applicant having re-labelled a failed stay application as an injunction and having left the main appeal unprosecuted for six years - the Court dismissed the application with costs on 20th April 2018.

Questions the Court framed

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

  1. 1.Whether the application for injunction under Rule 5(2)(b) was res judicata in light of the earlier rejected stay application
  2. 2.Whether the application was an abuse of court process given the multiplicity of similar applications and failure to prosecute the main appeal

Key legal issues

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01

Res judicata and abuse of process in repeat interlocutory applications

Holding

The Court held the injunction application was either res judicata or an abuse of process, since the same Court had already declined stay on the same considerations in its 9th May 2014 ruling.

Reasoning

The Court had already ruled, differently constituted, on the arguability of the intended appeal and the nugatory aspect, rejecting the stay application. Re-labelling the relief as an injunction did not alter the applicable legal considerations. The applicant had also made multiple similar applications in the High Court while leaving the appeal dormant for six years, compounding the abuse.

p. 3
02

Conduct of a litigant disobeying court orders

Holding

An applicant who disobeys unchallenged orders for payment in execution of a decree cannot invoke the Court's equitable discretion.

Reasoning

Ogola, J. had found the applicant's conduct showed unwillingness to pay the decretal amount, and had granted installments on terms. The applicant neither challenged nor complied with those orders. A court of equity will not exercise its discretion in favour of such an applicant.

p. 3
03

Unprosecuted appeal as a bar to interlocutory relief

Holding

An applicant seeking injunction pending appeal must show diligence in prosecuting the appeal; years of inaction weigh against granting discretionary relief.

Reasoning

The main appeal was filed on 16th March 2012, yet by the hearing date on 13th November 2017 no initiative had been taken to have it heard. Instead the applicant pursued successive interlocutory applications. This inaction and multiplicity were treated as indicative of abuse of process.

p. 2

Legal principles established

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  • A litigant cannot relitigate an application already decided by re-characterising it; the same legal considerations apply regardless of the label given to the application.
  • A multiplicity of similar applications made without pursuing the main appeal constitutes an abuse of court process which the Court will not countenance.

Court orders

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  1. 1.The application dated 9th January 2017 is dismissed with costs

The bench

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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. 189 of 2010
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules (application for injunction pending the hearing and determination of Appeal No. 58 of 2012)

Relief refused

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Order of injunction under Rule 5(2)(b) restraining the respondent from arresting, detaining or proclaiming against the applicant pending appeal

The application was either res judicata or an abuse of court process, and the applicant had neither prosecuted the appeal nor satisfied the twin principles for relief

p. 1

Costs

The application is dismissed with costs to the respondent.

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.

Whichever way we look at it, the application before us is either res judicata or an abuse of court process and we have no reason to grant the order sought.
p. 1res judicata and abuse of process
Baptising the current application as an injunction and then pretending that it was different from the earlier application is pure mischief. It cuts no ice since the same legal considerations apply.
p. 3re-labelling repeat applications
Such multiplicity of applications made without pursuing the main appeal for a period of six years smacks of abuse of court process which this Court will not countenance.
p. 3abuse of court process
the application is for dismissal and we order that it be and is hereby dismissed with costs.
p. 3final orders - dismissal with costs

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, "Nelson Mutai v Benson Kathunge [2018] KECA 674 (KLR)", Case Analysis (2018). Civil Application No. NAI 2 of 2017 (UR 2 of 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/674/eng@2018-04-20

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