Soy Developers Limited v Kenagri Products Ltd & 4 others (Civil Application E227 of 2021) [2021] KECA 25 (KLR)
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
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 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.Whether the intended appeal is arguable
- 3.Whether the appeal, if successful, would be rendered nugatory if the interim relief is not granted
Key legal issues
#Scope of Rule 5(2)(b) jurisdiction
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.
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.
Twin prerequisites under Rule 5(2)(b)
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.
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.
Article 159(2)(d) and substantive justice
Even applying substantive justice in deference to the overriding objective, the application would still fail on its merits.
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.
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.Interim orders of 16th June 2021 affirmed
- 2.Application dated 23rd April 2021 dismissed
- 3.Costs to abide the outcome of the appeal already filed
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- 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
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
Costs of the application to the applicant
Only one of two prerequisites satisfied; costs abided the appeal's outcome
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.
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.
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.
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.
Issues in the judgment
#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
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.