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 Appeal No. E227 of 2021

Soy Developers Limited v Kenagri Products Ltd & 4 others (Civil Application E227 of 2021) [2021] KECA 25 (KLR)

Court of Appeal of Kenya
23 September 2021
2,419 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

#

Kenya's Court of Appeal dismissed Kenya Aerotech's bid to block a property sale, ruling that interim appeals must meet both arguability and nugatory tests.

What this practically means

#

Executive summary

#
This was a Notice of Motion dated 23rd April 2021 brought under Rules 5(2)(b) and 41 of the Court of Appeal Rules by the applicant, aggrieved by the ruling of E. O. Obaga, J. delivered on 15th April 2021 in Nairobi ELC Case No. 132 of 2015 dismissing its application for a temporary injunction and maintenance of status quo over LR No. 209/11151 at Upper Hill. The applicant sought an interim injunction restraining the 3rd respondent from selling or disposing of the property, or alternatively maintenance of status quo pending the hearing of the ELC suit. A three-judge bench of the Court of Appeal (Nambuye, Karanja and Murgor, JJA) delivered a single joint ruling. The Court first addressed its own jurisdiction under Rule 5(2)(b), holding, following Stanbic Bank Kenya Limited vs Kenya Revenue Authority, that it may only stay proceedings, stay execution, or grant an injunction pending appeal; it has no mandate to grant a temporary injunction or status quo pending trial of the suit below, as that would vest original jurisdiction it does not possess. Invoking Article 159(2)(d), the Court nonetheless considered the merits: it found the memorandum of appeal arguable but held the nugatory-prong failed because the applicant did not controvert the 3rd respondent's evidence that the property had been sold in exercise of a statutory power of sale, extinguishing the equity of redemption, and that Gacheru, J. had declared the 3rd respondent the absolute and indefeasible owner. Since both prerequisites must be satisfied, the application failed. The Court dismissed the motion, affirmed its interim orders of 16th June 2021, and directed that costs abide the outcome of the appeal.

Questions the Court framed

#

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

  1. 1.Whether the Court has mandate under Rule 5(2)(b) to grant a 'temporary injunction' and a status quo order pending hearing of the High Court suit
  2. 2.Whether the intended appeal is arguable
  3. 3.Whether the appeal, if successful, would be rendered nugatory if the interim relief is not granted

Key legal issues

#
01

Scope of Rule 5(2)(b) jurisdiction

Holding

The Court has mandate only to stay proceedings, stay execution, or grant an injunction pending appeal; temporary injunctions and status quo pending the hearing of the High Court suit fall outside that mandate.

Reasoning

The Court distinguished the interim reliefs available on appeal from interlocutory relief at first instance. Prayers for a temporary injunction and for status quo pending trial would vest the Court with original jurisdiction over the High Court matter, which it does not possess. Such prayers would have warranted striking out had the application not been dismissed at the interlocutory stage.

p. 4
02

Twin prerequisites under Rule 5(2)(b)

Holding

An applicant must demonstrate both an arguable appeal and that the appeal will be rendered nugatory if relief is not granted; both must be satisfied.

Reasoning

The Court accepted that the memorandum of appeal raised arguable grounds, but held the nugatory-prong failed. The applicant did not controvert the 3rd respondent's deposition that the property had been sold in exercise of a statutory power of sale, extinguishing the equity of redemption, and that a judgment had declared the 3rd respondent the absolute and indefeasible owner. The orders sought were therefore overtaken by events and nothing capable of being stayed remained.

p. 5
03

Article 159(2)(d) and substantive justice

Holding

Even applying substantive justice in deference to the overriding objective, the application would still fail on its merits.

Reasoning

The Court stated it was obliged to take note of the non-technicality principle in Article 159(2)(d) of the Constitution whether or not expressly invoked. It therefore proceeded to consider the merits, finding the arguability threshold met but the nugatory threshold not satisfied, so the application failed regardless of the jurisdictional objection.

p. 4

Legal principles established

#
  • Under Rule 5(2)(b) the Court of Appeal may only grant a stay of proceedings, a stay of execution, or an injunction pending appeal; it has no mandate to grant a temporary injunction or status quo pending the hearing of the suit below
  • Both prerequisites for relief under Rule 5(2)(b) — an arguable appeal and the appeal being rendered nugatory — must be satisfied before relief can issue

Court orders

#
  1. 1.Interim orders of 16th June 2021 affirmed
  2. 2.Application dated 23rd April 2021 dismissed
  3. 3.Costs to abide the outcome of the appeal already filed

The bench

#

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

majority
majority
majority
On appeal from
Environment and Land Court
Nairobi ELC Case No. 132 of 2015
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules

Relief refused

#

Temporary injunction restraining sale or disposal of LR No. 209/11151

No mandate under Rule 5(2)(b) to grant a 'temporary injunction'; and the nugatory-prong prerequisite was not satisfied

p. 4

Maintenance of status quo pending hearing of Milimani ELC No. 132 of 2015

Rule 5(2)(b) reliefs operate pending appeal, not pending a subordinate suit; the prayer would vest original jurisdiction the Court does not have

p. 4

Costs of the application to the applicant

Only one of two prerequisites satisfied; costs abided the appeal's outcome

p. 5

Costs

Costs to abide the outcome of the appeal already filed

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.

under Rule 5(2)(b) of this court’s Rules, this court only has jurisdiction to grant three orders namely, an order staying the proceedings, an order staying execution of the Superior Court orders, and lastly, an injunction order.
p. 4Scope of Rule 5(2)(b) jurisdiction
The position in law is that both prerequisites must be satisfied before relief can issue under the said Rule. Since only one prerequisite has been satisfied the application therefore fails.
p. 5Twin prerequisites for relief under Rule 5(2)(b)
In law an arguable appeal is not one which must necessarily succeed, but one which is not frivolous but raises a bona fide issue that can be argued fully before the Court.
p. 4Definition of an arguable appeal
In the result and on the basis of the totality of the above assessment and reasoning, we find no merit in the application. We, therefore, afirm the orders issued by the court on 16th June, 2021. Costs to abide the outcome of the appeal already filed.
p. 5Final orders and disposition

Issues in the judgment

#
minor

Internal inconsistency in date of the ELC No. 567 of 2008 judgment: the judgment text states it was delivered on 29th May, 2021, but the reproduced replying affidavit deposes it was delivered on 29th May, 2015

minor

Parties in the style of cause are not fully named in the judgment; the respondents are referred to only by number (1st, 2nd, 3rd, 5th) with only two identified by name/role

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (1)

#

Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

#

Cite this brief

Caselaw, "Soy Developers Limited v Kenagri Products Ltd & 4 others (Civil Application E227 of 2021) [2021] KECA 25 (KLR)", Case Analysis (2021). Civil Appeal No. E227 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/25/eng@2021-09-23

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