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Court of AppealDismissedCivil Application NAI 51 of 2005· [2005] KECA 105 (KLR)

Humphrey Kilambo Mcharo v Kenya Commercial Bank Ltd & another [2005] KECA 105 (KLR)

Court of Appeal of Kenya
23 September 2005
EOE. O. O'KubasuEGE. M. GithinjiWDW. S. Deverell
675 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to stop the auction of a landowner's property, ruling his intended appeal had no realistic chance of success and damages would suffice.

What this practically means

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Executive summary

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This is a single-judge-application ruling of the Court of Appeal at Nairobi (O'Kubasu, Githinji and Deverell, JJ.A.) dismissing a Notice of Motion dated 3rd March 2005 brought under Rule 5(2)(b) of the Court of Appeal Rules. The applicant, Humphrey Kilambo Mcharo, sought a temporary injunction restraining Kenya Commercial Bank Ltd and Joel Titus Musya from advertising or selling by auction his land, L.R. No. 12192/4 Wundanyi Town, pending an intended appeal against the High Court at Mombasa (Khaminwa J). The court identified a material defect in the record: although the application referenced the 2004 Ruling, the Notice of Appeal dated 3rd October 2003 evidenced an intention to appeal only the 2003 Ruling, and counsel confirmed no appeal lay against the 2004 Ruling. The court therefore assessed arguability against the 2003 Ruling declining an interim injunction. It found no draft memorandum of appeal or reasonable grounds disclosed, was satisfied no issue in the ruling was likely to result in reversal, and held the Judge had exercised her discretion soundly, giving the intended appeal no reasonable probability of success. On nugatory-ness, the court accepted that a sale might prevent return of the property, but held damages would compensate the applicant, the Bank being financially able to pay. The application was dismissed with costs of the application in the intended appeal.

Key legal issues

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01

Whether the intended appeal against the 2003 Ruling is arguable

Holding

The intended appeal is not arguable; the learned Judge exercised her discretion soundly in refusing the interim injunction and the applicant disclosed no reasonable grounds of appeal

Reasoning

The applicant filed no draft memorandum of appeal and disclosed no reasonable grounds of appeal in submissions. Reading the 2003 Ruling, the court was satisfied that no issue in it was likely to lead to the decision being overturned, the Judge having prima facie exercised her discretion in a sound manner, so the intended appeal had no reasonable probability of success.

p. 2
02

Whether refusal of the injunction would render the intended appeal nugatory

Holding

The appeal would not be rendered nugatory because the applicant, if successful in the substantive suit, would be compensated in damages by a financially capable defendant bank

Reasoning

Although a sale of the property pending appeal might leave the applicant unable to recover the land itself from a third-party purchaser, success in the substantive suit would yield damages. There was no suggestion that Kenya Commercial Bank Ltd would be unable to pay such damages, so the nugatory-ness threshold was not met.

p. 2

Legal principles established

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  • An applicant under Rule 5(2)(b) must satisfy the court that the intended appeal is arguable and that the appeal or application would be rendered nugatory if the relief sought is not granted; damages against a financially able defendant may defeat the nugatory-ness limb

Court orders

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  1. 1.The application for a temporary injunction pending appeal is dismissed
  2. 2.Costs of the application to be in the intended appeal

Authorities

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Legislation

  • Court of Appeal RulesRule 5(2)(b)
On appeal from
High Court of Kenya at Mombasa
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (7)

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

Cite this brief

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Cite this brief

Caselaw, "Humphrey Kilambo Mcharo v Kenya Commercial Bank Ltd & another [2005] KECA 105 (KLR)", Case Analysis (2005). Civil Application NAI 51 of 2005. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2005/105/eng@2005-09-23

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