Joseph Kinoti Marete v Industrial & Commercial Development Corporation, Rose Gakii Mutuma & Samuel Mugendi t/a Clear Real Traders

Court of Appeal of Kenya

12 May 2006

P. K. Tunoi SBS. E. O. Bosire PWP. N. Waki

731 words in judgment

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The bottom line

Kenya's Court of Appeal refused to stop an eviction, ruling that complaints about how a property auction was run are settled with money damages, not injunctions.

What this practically means

Executive summary

The applicant, Joseph Kinoti Marete, applied to the Court of Appeal at Nyeri under rule 5(2)(b) of the Court of Appeal Rules for an injunction restraining the respondents from evicting, alienating or interfering with his occupation of land parcel Nkuene/Taita/512 pending an intended appeal against a ruling of the High Court at Meru (Lenaola J) dated 27 March 2006, which had refused him an injunction in a suit seeking nullification of the title of the second respondent. The applicant had borrowed Shs.1,500,000 from ICDC in 1996, charged the property as security, defaulted, and the property was sold by public auction to the second respondent, who was registered as proprietor. Before the Court, the applicant admitted receiving the statutory notice of sale, admitted default, and that the loan remained unpaid, complaining only of the manner in which the auction was conducted, alleging fraud, malice, absence of a genuine auction and undervalue. The Court restated the twin tests for relief under rule 5(2)(b): an arguable appeal and that the appeal, if successful, would not be rendered nugatory. Holding that the applicant's only remedy, if any, lay in damages under Section 77(3) of the Registered Land Act because he challenged only the manner of the sale, the Court found the first test unsatisfied and, consequently, that the appeal could not be rendered nugatory. The application was dismissed with costs on 12 May 2006 (Tunoi, Bosire and Waki JJA).

Key legal issues

Whether the applicant satisfied the twin tests for an injunction pending appeal under rule 5(2)(b)

Holding

The applicant failed the first test: the appeal was not arguable because his only remedy, if any, lay in damages, and consequently the nugatory test also failed.

Reasoning

The applicant admitted receiving the statutory notice of sale, being in default, and the loan remaining unpaid. He complained only of the manner of the auction. Section 77(3) of the Registered Land Act provides damages as the remedy for irregular exercise of the power of sale, so no arguable appeal arose and the appeal could not be rendered nugatory.

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Whether damages are an adequate remedy where the manner of a public auction is challenged

Holding

Yes; where only the conduct of the sale is impugned, the remedy lies in damages under Section 77(3) of the Registered Land Act.

Reasoning

The court distinguished between challenging the right to exercise the statutory power of sale and challenging only its manner. The applicant admitted default and receipt of the statutory notice, confining his complaint to the conduct of the auction, for which Section 77(3) provides damages as the remedy.

p. 2

Legal principles established

An applicant under rule 5(2)(b) must demonstrate an arguable appeal and that the appeal would be rendered nugatory if successful absent the relief sought.
Where a chargor challenges only the manner of exercise of statutory power of sale, his remedy lies in damages under Section 77(3) of the Registered Land Act, and an injunction pending appeal will be refused.

Court orders

1.The application for injunction pending appeal is dismissed
2.Costs of the application awarded to the respondents

Authorities

Legislation

Court of Appeal RulesRule 5(2)(b)
Registered Land ActSection 77(3)

On appeal from: High Court of Kenya at Meru; H.C.C.C. No. 79 of 2004
Jurisdiction invoked: Rule 5(2)(b) of the Court of Appeal Rules

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Joseph Kinoti Marete v Industrial & Commercial Development Corporation, Rose Gakii Mutuma & Samuel Mugendi t/a Clear Real Traders", Case Analysis (2006). Civil Appli 89 of 2006. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2006/238/eng@2006-05-12

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