SAMUEL NDIBA KIHARA & another v HOUSING FINANCE COMPANY OF KENYA LIMITED & 2 others [2007] KECA 12 (KLR)
The bottom line
#Kenya's Court of Appeal let new landowners take possession, saying the former owners could still get their land back if the appeal succeeded.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the intended appeal is arguable
- 2.Whether, unless an injunction is granted, the intended appeal would be rendered nugatory
Key legal issues
#Whether the intended appeal is arguable
Ground 4, on res judicata and section 60 of the Transfer of Property Act, is arguable in light of Uhuru Highway Development Ltd v Central Bank of Kenya
The court confined itself to grounds arising from the actual decision below, which was decided on res judicata, not merits. Relying on its earlier decision in Uhuru Highway Development Ltd, the court found ground 4, which raises the interplay between section 60 of the TPA and the doctrine of res judicata, to be a viable legal point fit for the intended appeal.
Whether the intended appeal would be rendered nugatory without an injunction
No: possession by the purchasers pending appeal would not render the appeal nugatory, since success below would only restore the dismissed application for hearing
The court held that the direct effect of a successful intended appeal would be restoration of the dismissed injunction application for hearing on merits, and purchasers could still be required to give vacant possession thereafter. Further, the purchasers were registered owners with indefeasible title under section 23 of the Registration of Titles Act, and their title was protected by section 60B(2) of the TPA, making it inequitable to deny them possession.
Whether equity should preserve the applicants' occupation of the suit land
It would be inequitable to deny the registered purchasers possession to which they are lawfully entitled
The court weighed the applicants' claim to a matrimonial home against the purchasers' registered, indefeasible title acquired by private treaty in exercise of the mortgagee's statutory power of sale, which section 60B(2) of the TPA shields from challenge on grounds of absence of case, notice or irregularity, confining any aggrieved person to damages.
Legal principles established
#- An injunction pending appeal under Rule 5(2)(b) requires the applicant to satisfy both arguability of the intended appeal and that the appeal would be rendered nugatory without the injunction
- Nothing in sections 60, 60A or 60B of the Transfer of Property Act excludes the application of the general principle of res judicata to repeated injunction applications
Court orders
#- 1.Application for injunction pending appeal dismissed
- 2.Costs of the application to be costs in the intended appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- H.C.C.C. No. 638 of 2006
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules
Relief refused
#Interlocutory injunction restraining respondents from taking vacant possession of the suit land pending appeal
Applicants failed to show the intended appeal would be rendered nugatory, and it would be inequitable to deny the registered purchasers possession
Costs
The costs of this application shall be costs in the intended appeal.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
This Court can only grant an injunction pending appeal under Rule 5 (2) (b) of the Rules of this Court if the applicants satisfy us both that the intended appeal is arguable and further that unless the order of injunction in terms sought is granted the intended appeal would be rendered nugatory
we are unable to find any explicit or implicit provision in section 60, 60A, 60B of TPA which excludes the application of the general principle of res judicata
In the result, we dismiss the application. The costs of this application shall be costs in the intended appeal.
Issues in the judgment
#Judgment refers to 'section 69B (2) of TPA' but the quoted text is headed '60B. (2)', an internal numbering inconsistency
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "SAMUEL NDIBA KIHARA & another v HOUSING FINANCE COMPANY OF KENYA LIMITED & 2 others [2007] KECA 12 (KLR)", Case Analysis (2007). Civil Application Nai 11 of 2007 (UR. 9/2007). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2007/12/eng@2007-11-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.