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 Application No. 153 of 2006 (UR 87/2006)· [2006] KECA 105 (KLR)

Abdul Kassim Hassanali Gulamhussein Khaki v Southern Credit Banking Corporation Limited [2006] KECA 105 (KLR)

Court of Appeal of Kenya
13 October 2006
2,251 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

#

Kenya's Court of Appeal refused to stop a bank from selling charged Mombasa property because the applicant showed neither an arguable appeal nor irreversible harm.

What this practically means

#

Executive summary

#
The applicant, a joint registered owner of L.R. No. Mombasa/Block X/211, moved the Court of Appeal under rules 5(2)(b) and 42 of the Court of Appeal Rules for an injunction restraining Southern Credit Banking Corporation Limited from selling, transferring or otherwise alienating the charged property pending an intended appeal against the ruling of Sergon J (High Court, Mombasa) of 23rd May 2006. The High Court had upheld a preliminary objection and stayed the applicant's chamber summons of 14th December 2005 in H.C.C.C No. 270 of 2005 under section 5 of the Civil Procedure Act, on grounds of res judicata and res subjudice, because substantially similar injunctive relief had been sought and refused in H.C.C.C No. 119 of 2004 (Mwera J, 6th October 2004), with an appeal pending in the Court of Appeal. Applying the established two-limb test for rule 5(2)(b) relief, Onyango Otieno JA held the applicant had demonstrated no arguable point, and that no nugatory result could follow because the decision below merely stayed the summons rather than dismissing it; if the appeal succeeded, the summons would simply proceed to hearing. The Court declined detailed discussion to avoid prejudicing the intended appeal. In a single-judgment opinion concurred in by Bosire JA (who pronounced the formal order) and Githinji JA, the application was dismissed with costs to the respondent on 13th October 2006. The ruling re-affirms the twin principles governing injunctions pending appeal: arguability and the nugatory-avoidance threshold, both of which must be satisfied.

Key legal issues

#
01

Arguability of the intended appeal against the High Court's stay of the chamber summons of 14th December 2005

Holding

The applicant failed to demonstrate any arguable point or points

Reasoning

Onyango Otieno JA reviewed the history: the applicant was one of the joint registered owners, an earlier suit (H.C.C.C No. 119 of 2004) by the co-owners had sought the same injunctive relief against the same chargeable property, and an appeal from its dismissal was pending. The High Court had merely stayed the later application under section 5 of the Civil Procedure Act on grounds of res subjudice pending the outcome of the earlier appeal. On the material before the Court, the learned Judge could not discern arguable points. The court expressly avoided detailed reasoning so as not to prejudice the intended appeal.

p. 3
02

Whether the intended appeal would be rendered nugatory if the injunction were refused

Holding

No nugatory effect could arise because the decision below merely stayed, and did not dismiss, the chamber summons

Reasoning

The Court reasoned that the applicant's suit and application remained alive; success in the intended appeal would simply mean the chamber summons of 14th December 2005 would be set down for hearing, with the outcome going either way. Since the applicant's ownership and remedies were not destroyed by a stay order, no irreversible alienation flowing from the ruling would defeat the appeal. Consequently the second limb of the rule 5(2)(b) test also failed.

p. 4

Legal principles established

#
  • An applicant under rule 5(2)(b) must show that he has an arguable appeal, meaning the appeal or intended appeal is not frivolous
  • The applicant must further demonstrate that unless the order of injunction is granted, the appeal, if successful, would be rendered nugatory
  • The Court's discretion under rule 5(2)(b), though unfettered, must be exercised upon reason and not compassionately

Court orders

#
  1. 1.The application dated 2nd June 2006 is dismissed with costs to the respondent

Authorities

#

Legislation

  • Court of Appeal Rulesrule 5(2)(b)
  • Court of Appeal Rulesrule 42
  • Civil Procedure Actsection 5

Cases cited (2)

  • Githunguri vs. Jimba Credit Corporation Ltd. (No. 2)
    (1988) KLR 838
  • Isaac Iruaku Kioi vs. Phillis Waithera Kinyugu & three others – Civil Application No. Nai. 58 of 2004
    (unreported)
On appeal from
High Court of Kenya at Mombasa
H.C.C.C No. 270 of 2005
Jurisdiction invoked
Rules 5(2)(b) and 42 of the Court of Appeal Rules

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (4)

#

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, "Abdul Kassim Hassanali Gulamhussein Khaki v Southern Credit Banking Corporation Limited [2006] KECA 105 (KLR)", Case Analysis (2006). Civil Application No. 153 of 2006 (UR 87/2006). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2006/105/eng@2006-10-13

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