Kampala International University v Housing Finance Company Limited
The bottom line
#Supreme Court halts bank's sale of university land pending appeal over fair hearing rights.
What this practically means
#Kampala International University asked the Supreme Court to stop Consolidated Bank from selling three of its properties. The bank had won an arbitration award and planned to sell the land. The university argued its right to a fair hearing was violated when the High Court did not let it present its case. The Supreme Court agreed the appeal had merit and granted a temporary block to prevent irreparable harm while the full appeal is heard.
Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the applicant has an arguable appeal
- 2.Whether the appeal will be rendered nugatory if the conservatory orders are not granted
- 3.Whether it is in the public interest to grant the conservatory orders
Key legal issues
#Whether the appeal is arguable for purposes of granting conservatory orders.
The appeal is arguable because it raises questions on the interpretation or application of the Constitution, specifically the right to fair hearing under Article 50, which was allegedly violated when the High Court did not allow the applicant to highlight its submissions, and this issue was not addressed by the Court of Appeal.
The court noted that the applicant's appeal hinges on the question of interpretation or application of the Constitution on grounds that its right to fair hearing was hindered when at the High Court it was not given an opportunity to highlight its submissions, which right was not addressed by the Court of Appeal. The court also noted contention on whether it has jurisdiction in light of its previous decisions. The court held that an arguable appeal is not one which necessarily must succeed but one which ought to be argued fully by the court, and found the appeal arguable.
Whether the appeal would be rendered nugatory if conservatory orders are not granted.
The appeal would be rendered nugatory because the respondent seeks to recover a large sum of money through the statutory power of sale of the applicant's properties, and there is imminent danger of the applicant being evicted, which would occasion irreparable harm.
The court considered that the respondent seeks to recover USD 12,767,508.33 through the statutory power of sale of the applicant's properties. The amount in contention is considerably large and there is imminent danger on the applicant being evicted from the said properties as a result of the impugned ruling by the Court of Appeal. The court was of the view that this would occasion irreparable harm upon the applicant.
Whether there is sufficient public interest to warrant granting conservatory orders.
There is sufficient public interest element in the appeal as it touches on an inalienable right, that is the right to a fair trial under Article 25 of the Constitution, the applicability of the doctrine of stare decisis, and the exercise of jurisdiction by various institutions in the dispensation of justice.
The court found that the appeal touches on an inalienable right, the right to a fair trial as stipulated under Article 25 of the Constitution, the applicability of the doctrine of stare decisis, and the exercise of jurisdiction by the arbitrator, the High Court, and the Court of Appeal in the dispensation of justice. This was sufficient to establish public interest.
Legal principles established
#- To get a conservatory order in the Supreme Court, you must show the appeal is arguable, not frivolous.
- An arguable appeal is one that deserves full hearing, not necessarily one that will succeed.
- If a large sum of money is at stake and eviction is imminent, the appeal could be rendered nugatory without a stay.
- Public interest exists when the appeal involves an inalienable constitutional right like fair trial.
- The doctrine of stare decisis and exercise of jurisdiction by courts can also raise public interest.
Court orders
#- 1.The notice of motion application dated November 16, 2022 and filed on November 22, 2022 be and is hereby allowed to the extent that conservatory orders of injunction restraining the respondent whether by themselves, servants, agents, or any other person claiming under them from in any way alienating or selling the parcels of land known as Kajiado/Kaputiei North/1209, Kajiado/Kaputiei North/1210 and Kajiado/Kaputiei North/1211 in exercise of statutory power of sale and/or enforcement of the final arbitral award made and published by the arbitrator, Hon Mr Collins Namachanja on the September 27, 2019 pending the hearing and determination of this appeal
- 2.Costs of the application shall abide the outcome of the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Court of Appeal of Kenya
- Jurisdiction invoked
- Article 163(4)(a) of the Constitution of Kenya, 2010
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 notice of motion application dated November 16, 2022 and filed on November 22, 2022 be and is hereby allowed to the extent that conservatory orders of injunction restraining the respondent whether by themselves, servants, agents, or any other person claiming under them from in any way alienating or selling the parcels of land known as Kajiado/Kaputiei North/1209, Kajiado/Kaputiei North/1210 and Kajiado/Kaputiei North/1211 in exercise of statutory power of sale and/or enforcement of the final arbitral award made and published by the arbitrator, Hon Mr Collins Namachanja on the September 27, 2019 pending the hearing and determination of this appeal
the case of Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others SC Application No 5 of 2014 [2014] eKLR which set out the criteria for grant of interlocutory relief – an applicant must demonstrate that the appeal is arguable and not frivolous; that if stay is not granted the appeal will be rendered nugatory; and that it is in the public interest that the order of stay is granted.
Key timeline
#Practical implications
#Arguable appeal standard clarified
When seeking conservatory orders in the Supreme Court, demonstrate that the appeal raises constitutional questions, such as fair hearing. The court will not require certainty of success, only that the appeal merits full argument. Also emphasize irreparable harm and public interest in inalienable rights.
Statutory power of sale delayed
Creditors with statutory power of sale should be aware that a debtor can obtain a stay by showing an arguable constitutional appeal. The Supreme Court may halt sale pending appeal if the debtor risks eviction and the amount is large. Ensure foreclosure processes respect procedural fairness to avoid such challenges.
Protect your property rights
If your property is at risk of sale by a bank in Kenya, you can seek a court order to stop the sale if you have a strong legal argument, especially if your right to a fair hearing was violated. The Supreme Court may grant a temporary block if the sale would cause irreparable harm and the issue is of public interest.
Frequently asked questions
#Can the Supreme Court stop a bank from selling my land in Kenya?+
Yes, in certain cases. The Supreme Court can grant a conservatory order to stop a sale if you have an arguable appeal, the sale would cause irreparable harm, and the public interest supports the order. This is what happened in Kampala International University v. Consolidated Bank.
What is an arguable appeal in Kenya?+
An arguable appeal is one that raises serious legal questions worth full consideration by the court. It does not have to be certain to succeed. In this case, the Supreme Court found the appeal arguable because it raised a constitutional right to a fair hearing.
How do I get a conservatory order in Kenya?+
You must file an application showing that your appeal is arguable, that the order is necessary to prevent the appeal from being rendered useless, and that granting it serves the public interest. The Supreme Court applied this test from the Gatirau Peter Munya case.
What is the right to a fair hearing under Article 50 in Kenya?+
Article 50 of the Kenyan Constitution guarantees every person the right to a fair hearing, including the opportunity to present their case. In this case, the university argued this right was violated when the High Court did not allow it to highlight its submissions.
Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Faraj v Mwawasi & 2 others[2024] KESC 61 (KLR)18 Oct 2024
- Kampala International University v Housing Finance Company Ltd[2024] KESC 11 (KLR)12 Apr 2024distinguished
Cite this brief
#Cite this brief
Caselaw, "Kampala International University v Housing Finance Company Limited", Case Analysis (2023). Petition (Application) 34 (E035) of 2022. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2023/5/eng@2023-01-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.