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 AppealPartially AllowedCivil Application No. NAI 163 of 2018 (UR 132/2018)

Afyare Enterprises Company Limited v Gideon Kiremah Mugambi & 3 others [2019] KECA 301 (KLR)

Court of Appeal
11 October 2019
2,358 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

#

Kenya's Court of Appeal blocked any sale or transfer of a disputed Nairobi property pending appeal, but allowed construction on it to continue.

What this practically means

#

Executive summary

#
This is a ruling of the Court of Appeal at Nairobi (Githinji, Sichale & Otieno-Odek, JJ.A) on an application under Rule 5(2)(b) of the Court of Appeal Rules seeking an injunction pending the hearing and determination of an intended appeal against a ruling of Eboso, J. of the Environment & Land Court delivered on 25th May 2018, dismissing the applicant's application for an interlocutory injunction in a suit seeking nullification of the sale and transfer of Baraka Shopping Complex and specific performance of a sale agreement. The Court restated the established twin tests: the applicant must show the intended appeal is arguable and that, if successful, it would be rendered nugatory absent the order. The Court found the intended appeal arguable because the trial judge had made final findings of fact and law at an interlocutory stage, including on matrimonial property, spousal consent and termination of the sale agreement. On the nugatory limb, the Court held the valuable city property, now registered in the 2nd respondent's name, might change hands before the appeal was heard. The Court declined to restrain construction or development, being uncertain whether construction was complete, but granted a tailored injunction restraining the 2nd respondent and the Chief Lands Registrar from transferring, registering any dealing in, or dealing with the suit property pending the intended appeal. The application was allowed only to that extent, with costs in the appeal. This ruling binds subordinate courts and tribunals on the Rule 5(2)(b) threshold and on the Court's limited function on such applications.

Questions the Court framed

#

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

  1. 1.Whether the intended appeal is arguable
  2. 2.Whether, unless the injunction is granted, the appeal, if successful, would be rendered nugatory
  3. 3.What terms of injunction, if any, are appropriate pending the hearing and determination of the intended appeal

Key legal issues

#
01

Whether the intended appeal is arguable

Holding

The intended appeal was arguable because the learned judge made final findings of fact and law at an interlocutory stage, including that the suit property was matrimonial property, that spousal consent was not obtained, that the sale agreement was terminated, and that a court of equal status could not issue an order vacating a High Court order.

Reasoning

The Court reviewed the impugned ruling and the draft grounds of appeal, which assailed the trial judge's findings and alleged breach of court orders, bias, and collusive consent orders. It found the ruling contained final findings on contested matters at interlocutory stage, making the appeal arguable without deciding those contested issues.

p. 3
02

Whether the appeal would be rendered nugatory if the injunction is not granted

Holding

The Court found the nugatory test satisfied because the suit property is a valuable city property now registered in the name of the 2nd respondent, and it is probable the property may change hands before the appeal is heard, rendering a successful appeal nugatory.

Reasoning

The subject matter is a valuable city property registered in the name of the 2nd respondent. The Court reasoned that preservation was necessary because if the property changed hands before the appeal was determined, a successful appeal would be of no effect. It thus granted a limited injunctive restraint on transfers and dealings.

p. 3
03

The appropriate scope of the injunction pending appeal

Holding

The Court granted a tailored injunction restraining transfer and registration of dealings in the suit property, but declined to restrain construction or development because of uncertainty whether the construction had been completed.

Reasoning

Balancing the parties' positions, the Court noted the 2nd respondent deposed it had demolished the old premises and built a new shopping centre while the applicant disputed completion. Given the uncertainty, restraining construction was inappropriate, but restraining transfer and dealings would preserve the subject matter of the appeal.

p. 3

Legal principles established

#
  • Before the Court can exercise its discretion to grant an order of stay of execution or injunction under Rule 5(2)(b), the applicant must demonstrate that the intended appeal is arguable and that unless the order is granted, the appeal, if it ultimately succeeds, would be rendered nugatory.
  • On a Rule 5(2)(b) application, the function of the Court is not to determine contested issues of fact and law, but only to determine whether the intended appeal raises arguable grounds.

Court orders

#
  1. 1.An injunction issued against Max Gas and Logistics Limited (2nd respondent) and the Chief Lands Registrar, Nairobi (3rd respondent) from transferring and/or registering any dealing or from dealing whatsoever in respect of Land Parcel No. 36/VII/403, original number 3018, pending the hearing and determination of the intended appeal
  2. 2.The notice of motion dated 30th May, 2018 allowed only to that extent
  3. 3.Costs of the application to be costs in the appeal

The bench

#

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

majority
majority
majority
On appeal from
Environment & Land Court at Nairobi
E&LC Case No. 1626 of 2016
Jurisdiction invoked
Rule 5(2)(b) Court of Appeal Rules - application for injunction pending the hearing and determination of an intended appeal

Relief refused

#

Injunction restraining the respondents from undertaking development, construction and/or making improvements to the building on the suit property

There was no certainty that the construction had not been completed; the 2nd respondent deposed that it had demolished the old premises and built a new shopping centre

p. 3

Injunction against the 1st and 4th respondents restraining them from dealing with the suit property

The injunction granted was confined to the 2nd and 3rd respondents only

p. 3

Costs

The costs of this application shall be costs in the appeal.

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 the foregoing reasons, the notice of motion dated 30th May, 2018 is allowed to the extent that an injunction is issued against the Max Gas and Logistics Limited (2nd respondent herein) and the Chief Land Registrar, Nairobi (3rd respondent herein) from transferring and/or registering any dealing or from dealing whatsoever in respect of Land Parcel No. 36/VII/403, original number 3018, pending the hearing and determination of the intended appeal.
p. 3Final orders - injunction granted limited to 2nd and 3rd respondents
The costs of this application shall be costs in the appeal. It is so ordered.
p. 3Costs order
The function of this Court in application of this kind is not to determine the contested issues of fact and law. Rather, its function is to determine whether or not the intended appeal or appeal raises arguable grounds fit for consideration of the Court, whatever the outcome would be.
p. 3Scope of Rule 5(2)(b) applications
In the absence of certainty that the construction is not completed, it would be inappropriate to grant an injunction stopping construction or use of the suit land.
p. 3Refusal of injunction against construction

Issues in the judgment

#
minor

The judgment inconsistently records the suit land parcel number, referring variously to LR. No. 36/VII/403 and LR. No. 36/VIII/403

minor

The judgment inconsistently records the number of the matrimonial suit, referring both to Civil Case No. 9 of 2005 (OS) and HCCC No. 9 of 2015 (OS)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Afyare Enterprises Company Limited v Gideon Kiremah Mugambi & 3 others [2019] KECA 301 (KLR)", Case Analysis (2019). Civil Application No. NAI 163 of 2018 (UR 132/2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/301/eng@2019-10-11

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