Hutchings Biemer Ltd. v Barclays Bank of Kenya Ltd., Adrian Spencer Dearing & J.S. Ward
The bottom line
#Kenya's Court of Appeal confirmed it can block a property sale pending appeal, but only if the borrower pays a substantial part of the debt first.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of the Court of Appeal to grant injunctions pending appeal
The Court has jurisdiction to grant an injunction pending appeal in deserving matters to preserve the status quo, notwithstanding that the superior court declined one.
Relying on Madhupaper International Limited v Kerr, the Court read that authority as recognising concurrent jurisdiction of the superior court and the Court of Appeal in granting injunctions. Injunctive orders preserve property and maintain the status quo, so the Court may grant them during the pendency of the appeal, though the ordinary principles for granting injunctions must still be strictly adhered to.
Arguability of the intended appeal
The intended appeal is arguable only on the refusal of extension of time; the dispute over accounts cannot ground the appeal.
Without holding a mini-appeal, the Court found the accounts dispute was fully catered for by the consent order and cannot stop a mortgagee's power of sale where a debt is due. However, on perusal of the record and the Gautama S.C letter, the Court felt the intended appeal was arguable on the refusal to extend time for payment.
Nugatory value and conditional relief
Refusal of the injunction would likely lead to sale of the charged property, rendering a successful appeal nugatory; but the respondent's interests justified conditional relief.
If the property were sold and the appeal later succeeded, the applicant would lose the property, its business and all that goes with it. Yet the applicant admitted owing a large sum, and the respondent's business interests had to be considered. The Court balanced these by granting the injunction conditioned on payment of Ksh.30 million within 30 days.
Legal principles established
#- An applicant under rule 5(2)(b) must show the appeal is arguable and that it would be rendered nugatory if stay or injunction is refused.
- The Court of Appeal has concurrent jurisdiction with the High Court to grant injunctive orders pending appeal to preserve property and maintain the status quo.
- A dispute as to accounts cannot form a valid ground to stop a mortgagee from exercising his power of sale so long as there is a debt due to the mortgagee.
Court orders
#- 1.Injunction granted upon condition that the applicant pays the first respondent Ksh.30,000,000/= within thirty (30) days of the date of the ruling
- 2.Upon compliance with the condition, the injunction sought is granted till the intended appeal is heard and determined
- 3.Limited stay for 30 days from the date of the ruling to enable the applicant to comply with the order
- 4.First respondent to have costs of the application
- On appeal from
- High Court of Kenya at Nairobi
- H.C.C.C No. 85 of 2005
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Hutchings Biemer Ltd. v Barclays Bank of Kenya Ltd., Adrian Spencer Dearing & J.S. Ward", Case Analysis (2006). Civil Application 312 of 2005. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2006/287/eng@2006-03-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.