Kitonga & 2 others v Hashtag Biz Hub Co. Ltd

iii. THAT the status quo prevailing on the ground before issuance of the order of September 11, 2019 in CMCC No 4665 of 2019 to continue prevailing.” 2. By way of background, the respondent led a suit in the magistrate’s court against the applicant, seeking orders of injunction and specic performance of a sale agreement in respect of a property LR No Nairobi/Block Tassia-11-97 /0794/088. Together with the suit, the respondent led an application for injunction orders against the applicant. 3. Upon hearing the parties, the trial magistrate in a ruling dated 11th September 2019, granted an order for injunction and directed that OCPD Embakasi police station ensures compliance with the orders of the court. Aggrieved by the decision of the trial magistrate, the applicant led an appeal in the High Court and also led an application for stay of the execution pending the hearing and determination of the appeal. 4. Upon hearing the application, the learned judge dismissed the application and held as follows: “ 7. The parties were directed to le their submissions. I have considered the submissions which the parties led. I must state at the outset that both parties addressed issues which if I were to address will embarrass the trial court. The appeal which has been led arises out of an interlocutory application. The main suit is still pending in court. The only issue for me to decide is whether the applicants have demonstrated that they have an arguable appeal and an arguable appeal is not one which will necessarily succeed.” 8. The applicants do not deny that they entered into a sale agreement with the respondent. There is also no serious denial that the respondent was granted possession and that at some stage, the 3rd applicant had approached the respondent with a request to lease out the suit premises to him. For reasons I have stated hereinabove, I do not wish to make nal ndings on matters which will embarrass the trial court. However, considering the circumstances surrounding this matter, I have not been persuaded that the applicants have an arguable appeal to warrant grant of stay orders. It is clear that the respondent had been granted possession. When the 3rd applicant failed to secure a lease from the respondent, he went back to the applicant who granted him one. The status quo which should prevail is the status before the 3rd applicant entered the suit premises. I therefore nd no merit in the applicant’s application which is hereby dismissed with costs to the respondent.” 5. We have carefully considered the application, the rival adavits, the supporting documents, and the written submissions of the parties. 6. It is trite law that to succeed in an application under rule 5 (2) (b) of the Court of Appeal Rules, an applicant has to satisfy the twin principles that are enumerated in many decisions of this court namely: 7. i. An applicant must demonstrate that they have an arguable appeal; and ii. That the intended appeal (or appeal if already led) will be rendered nugatory if the execution of the decree, order of proceedings is not stayed. On the rst limb of the twin principles, this court held in David Morton Silversein v Atsango Chesoni [2002] eKLR that for an order of stay to issue, the applicant must rst demonstrate that the appeal or https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1392/eng@2022-12-16 2

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intended appeal is arguable; that is, it is not frivolous, and that the appeal or intended appeal would in the absence of stay be rendered nugatory. 8. Regarding the suciency of the pleaded grounds of appeal to warrant a grant of the stay of the orders sought, this court in Yellow Horse Inns Ltd v A.A Kawir Transporters and 4 others [2014] eKLR, observed that an applicant need not show a multiplicity of arguable points, as one arguable point would suce. Neither is the applicant required to show that the arguable point would succeed, as this court held in Kenya Commercial Bank Limited v Nicholas Ombija [2009] eKLR. 9. On the arguability of the appeal, the applicants have raised a number of grounds in the memorandum of appeal stating that; on jurisdiction the trial court failed to address whether it had jurisdiction in view of section 3(3) of the law of Contract Act; no prima facie evidence had been adduced to warrant grant of injunction, the respondent did not have possession of the property and had not complied with the conditions to warrant possession; and the court in its ruling varied the terms of the contract between the parties. 10. Upon considering the grounds of appeal, we note that this Court has held in the case of Kenya Commercial Bank v Nicholas Ombija [2009] eKLR, (supra) that an “arguable” appeal is not one which must necessarily succeed, but one which ought to be argued fully before the court. The grounds raised by the applicant are arguable, but whether they will succeed or not, will be dealt with by the bench that will hear the appeal. Therefore, the applicant has satised the rst limb of the twin principles but is subject to succeeding on the second limb on whether the appeal will be rendered nugatory if the order for stay of execution is not granted. 11. On the second limb of these principles, as to whether the appeal would be rendered nugatory if the stay is not granted, this Court in Reliable Bank Ltd v Norlake Investments [2002] 1 EA dened the word “nugatory” in the following words: “it does not mean only worthless, futile, or invalid, it also means triing.” The court also expressed the view that what may render the success of the appeal nugatory must be considered within the circumstances of each case. 12. We note that this dispute revolves around the interpretation of the agreement dated November 15, 2015. It is worth noting, that the terms of that agreement are clearly stated and the purchase price is known. It is not also disputed by the applicant, that it has already received a sum of kshs 5,500,000.00 from the respondent. In view of this, in the event that the applicant is successful, any damages that it may suer as a result of the alleged breach can be compensated by way of damages. Accordingly, the applicants have not satised the second limb for grant of stay under rule 5 (2) (b) of the Court of Appeal rules. 13. Finally, it is noteworthy that the application is seeking a stay of a negative order. The order of the High Court was for the dismissal of the application for a stay of the magistrate’s court. In their prayer, they have prayed for a stay of execution of the orders of the magistrate’s court. The application that is before us, is the one emanating from the ruling of the learned judge and it is the one the applicant is appealing against. In the case of Thika School of Medical and Health Sciences Limited (Under Administration) & another v Rao & 2 others (Civil Application E004 of 2022) [2022] KECA 382 (KLR) (Civ) (4 March 2022) (ruling) this court at paragraph 24, has pronounced itself on the question of an application seeking stay of negative orders: “ …there is no jurisdiction to grant relief under rule 5(2) (b) of this court’s rules where the High Court’s order either resulted in a dismissal or a striking out orders or, alternatively, where the court did not order either party to do or refrain from doing something capable https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1392/eng@2022-12-16 3

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of being restrained… that where the court is not being asked to issue an order of status quo, there is no jurisdiction to grant relief under the said Rules…” 14. The upshot of the foregoing is that this application has failed to satisfy the twin principles for grant of stay under rule 5 (2) (b) of the Court of Appeal rules. Accordingly, the application is dismissed with costs to the respondent. DATED AND DELIVERED AT NAIROBI THIS 16TH DAY OF DECEMBER, 2022. ALI-ARONI .............................. JUDGE OF APPEAL J. MATIVO .............................. JUDGE OF APPEAL M. GACHOKA, CIArb, FCIArb .............................. JUDGE OF APPEAL I certify that this is a true copy of the original Signed DEPUTY REGISTRAR https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1392/eng@2022-12-16 4

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