Abdul Kader Abdul Khaliq Said & 4 others v National Bank of Kenya Limited [2006] KECA 202 (KLR)
The bottom line
#Kenya's Court of Appeal refused to protect land already sold at auction, because the buyer never got to be heard.
What this practically means
#Executive summary
#Key legal issues
#Whether an injunction pending appeal can issue over property already sold to an unheard third party
It cannot; the motion was overtaken by the auction sale and the purchaser, being neither served nor heard, could not be bound by an adverse order
The Court noted that the disputed land was sold at a public auction on 14th March 2006 to Karuri Mwangi, the highest bidder, who paid 25% of the bid price. He was not served with the motion. The Court held it would be unreasonable to restrain a completed sale and unjust to make an order adverse to the purchaser without hearing him.
Effect of an applicant allowing a conditional injunction/stay to lapse
An applicant who had an order of stay and allowed it to lapse by non-compliance with its conditions can only blame themselves; they cannot obtain a fresh unconditional injunction on their own terms
Ochieng, J had granted an injunction conditional on depositing Kshs.4,500,000 within sixty days, failing which the injunction would stand vacated. The Applicants did not comply, appealed the condition, and moved the Court of Appeal months after the injunction had vacated. The Court treated their non-compliance and lapsed order as fatal to the motion.
Legal principles established
#- An appellate court cannot grant an injunction to restrain a sale that has already taken place, nor make an order adverse to the interests of a third-party purchaser who has not been served with or heard on the application
Court orders
#- 1.The Applicants' notice of motion dated 9th December 2005 and lodged in Court on 20th February 2006 be and is hereby dismissed
- 2.Costs of the motion to the Respondent
- On appeal from
- High Court of Kenya at Nairobi (Milimani Commercial Courts)
- H.C.S.C. No. 42 of 2005
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules - application for injunction pending the lodging, hearing and determination of an intended appeal
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Abdul Kader Abdul Khaliq Said & 4 others v National Bank of Kenya Limited [2006] KECA 202 (KLR)", Case Analysis (2006). Civil Appeal (Application) No. 45 of 2006. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2006/202/eng@2006-06-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.