Estate Sonrisa Limited v Samuel Kamau Macharia & another; Fidelity Commercial Bank Limited (Interested Party) [2019] KECA 512 (KLR)
The bottom line
#The Court of Appeal dismissed Estate Sonrisa's appeal, confirming you cannot challenge a decree's validity in an appeal against a post-judgment ruling when a substantive appeal is still pending.
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 learned Judge erred in failing to find that the 1st respondent's demolition of the boundary wall and structures on 25th January 2015, before beacons were fixed, was illegal or a nullity
- 2.Whether the validity of the decree as extracted from the trial court's judgment can be determined in the instant appeal against a post-judgment ruling
- 3.Whether the Court of Appeal should interfere with the learned Judge's discretionary refusal to grant injunctive and restraining orders
Key legal issues
#Whether the validity of a decree extracted from a trial court's judgment can be challenged in an appeal against a post-judgment ruling
No. The validity of the decree and the final orders of the trial court fall to be determined in the pending substantive consolidated appeals against the judgment itself; this Court declined to determine them in the present appeal.
The Court stressed that the appeal was not against the judgment of Mukunya, J. but against a post-judgment ruling, and there was no prayer to set aside that judgment. Determining the validity of the decree in this appeal would prejudice the outcome of the pending consolidated appeals, in which the judgment and decree fall to be confirmed or set aside. The Court therefore found the learned Judge did not err in declining to declare the execution a nullity.
Whether rights of parties can be determined in an appeal founded on a post-judgment ruling
No. Rights of parties are determined with finality through a judgment of the court, not in a post-judgment ruling, and an appellate court must refrain from making concluded views to avoid prejudging the pending substantive appeals.
The Court, citing David Kamau Gakuru v National Industrial Credit Bank Ltd, held that the prayer sought in the appeal was for determination of rights arising from execution of a judgment, which cannot be done in a post-judgment ruling. To determine such rights would risk prejudging, embarrassing or prejudicing the pending consolidated appeals before the Court in Nairobi.
Whether the Court of Appeal should interfere with the trial judge's exercise of discretion in dismissing the injunction application
No. The prayers were discretionary in nature and the appellant did not demonstrate that the Judge misdirected herself, misapprehended the facts, took into account irrelevant matters, or that her decision was plainly wrong.
Applying the classic Madan, JA criteria in United India Insurance Co. Ltd v East African Underwriters (Kenya) Ltd, the Court held that interference with discretionary decisions is permitted only on the enumerated grounds. The Judge had declined to exercise her discretion to grant the injunctive reliefs sought, and the appellant failed to show any error in that exercise sufficient to justify appellate intervention.
Legal principles established
#- The rights of parties cannot be determined in an appeal founded on a post-judgment ruling; they are determined with finality through a judgment of the court, and an appellate court must refrain from deciding such issues where a substantive appeal is pending.
- The Court of Appeal will not interfere with a discretionary decision of a trial judge unless it is established that the judge misdirected himself in law, misapprehended the facts, took into account irrelevant considerations, failed to take into account relevant considerations, or that the decision is plainly wrong.
- So long as a decree has not been set aside, an execution process premised on it cannot be declared a nullity or illegal by a court entertaining a post-judgment application.
Court orders
#- 1.The appeal is dismissed with costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Environment and Land Court at Mombasa
- ELC Case No. 30 of 2014
- Jurisdiction invoked
- Not expressly stated in the judgment; the appeal lies against the ruling of the Environment and Land Court at Mombasa (the judgment records it as 'an appeal against the Ruling and order of the Environment and Land Court at Mombasa (A. Omollo. J.) dated 5th July, 2016 in ELC Case No. 30 of 2014')
- Consolidated with
- Malindi Civil Appeal No. 14 of 2015 (Estate Sonrisa Limited -v- Samuel Kamau Macharia & another), Malindi Civil Appeal No. 32 of 2016 (Ali Khan Ali Muses -v- Samuel Kamau Macharia & another)
Relief refused
#A declaration that the 1st respondent's execution and demolition of the boundary wall and structures on 25th January 2015 was illegal, null and void
The validity of the decree cannot be determined in an appeal founded on a post-judgment ruling while the substantive consolidated appeals against the trial court's judgment are pending; and the judge's refusal to exercise discretion in the appellant's favour was not shown to be wrong
Costs
The appeal was dismissed with costs to the respondents.
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.
The rights of parties cannot be determined in a post-judgment ruling. The rights of parties are to be determined with finality through a judgment of the court.
We cannot in an appeal founded on a ruling in a post-judgment application determine the rights of the parties when a substantive appeal is pending before this Court.
The Court of Appeal will not interfere with a discretionary decision of the judge appealed from simply on the ground that its members, if sitting at first instance, would or might have given different weight to that given by the judge to the various factors in the case.
The decree issued has not been set aside and if the execution process was premised on it, then I have no reason to find that the execution process is a nullity or illegal
For the foregoing reasons, we find this appeal has no merit and is hereby dismissed with costs.
Issues in the judgment
#The coram lists the panel as sitting at Mombasa, while the judgment is dated and delivered at Malindi and other parts of the judgment refer to the consolidated appeals pending before the Court sitting at Nairobi.
The judgment refers to the pending substantive appeal variously as Malindi Civil Appeal No. 14 of 2015 and Civil Appeal No. 14 of 2016 within the same judgment.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Estate Sonrisa Limited v Samuel Kamau Macharia & another; Fidelity Commercial Bank Limited (Interested Party) [2019] KECA 512 (KLR)", Case Analysis (2019). Civil Appeal No. 100 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/512/eng@2019-07-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.