Rose Wakuthii Mwangi Njunu v Edward Kithinji & 2 others [2006] KECA 210 (KLR)

The court noted that the superior court had dealt with all the issues in an elaborate ruling and that every issue raised in the application had been raised and fully considered below. The judge had found that a valid statutory notice was issued and served, that there was no evidence the deceased was forced into the sale or was mentally incapable of understanding it, and that the deceased acknowledged the indebtedness and never challenged the validity of the charge or transfer in his lifetime. The applicant advanced nothing to show the judge erred, and the court concluded the intended appeal was frivolous.

The balance of the purchase price of Shs.8,500,000/= was held by the purchaser's advocates for release to HFCK only on delivery of vacant possession; because the applicant refused to vacate, the debt could not be discharged. The court held that payment of that balance was a matter between the first respondent and HFCK, not the applicant. The mortgage protection insurance proceeds of Shs.5,819,625/= had already been applied to the loan account and the deceased was not a beneficiary of the policy. Granting the injunction would therefore prolong the respondents' deprivation of the property.

The suit property was leasehold registered under the Registered Land Act. The deceased transferred it in his lifetime and the first respondent was registered as proprietor, becoming indefeasible owner under sections 27(b) and 28 of the Act, with rectification possible only for fraud to which the first respondent was party under section 143. The deceased had an advocate during the transaction, executed the transfer, acknowledged by a post-sale agreement dated 23rd June 2005 that the sale was completed, and part of the consideration payable to him was paid to his advocates, so no basis for rectification existed.

The applicant was appealing against the refusal by the superior court of discretionary and equitable relief, and an appellate court does not normally interfere with the exercise of a trial court's discretion unless the strict conditions enunciated in Mbogo v Shah are shown to exist. The court found that the applicant had not attempted, either in the application or otherwise, to show that the learned judge erred in the manner he exercised his discretion or that grounds existed for interfering with it, reinforcing the conclusion that the intended appeal was unarguable.