ANNE N. PARMENA v HOUSING FINANCE COMPANY OF KENYA LTD (Civil Application 132 of 2007) (Civ) [2007] KECA 72 (KLR)
The bottom line
#Kenya's Court of Appeal stopped a lender from auctioning a widow's home, ruling that disputed mortgage accounts justified preserving the property until the appeal is heard.
What this practically means
#Executive summary
#Key legal issues
#Test for relief under rule 5(2)(b)
The applicant must demonstrate an arguable appeal and that the appeal will be rendered nugatory without relief; both limbs are well settled
The court restated the twin principles governing rule 5(2)(b) applications, tracing them to Githunguri v Jimba Credit Corporation Ltd (No. 2) and subsequent authorities, and applied them to the facts before it.
Arguability of the intended appeal
The intended appeal was arguable and not frivolous, with the respondent's counsel conceding a dispute in the mortgage accounts
Counsel for the applicant argued the Judge erred in failing to find the applicant had met the requirements for a mandatory injunction and that the loan ought to have been settled through the Life Insurance Policy. Respondent's counsel conceded the appeal was arguable given the unresolved account dispute, satisfying the first limb.
Nugatory aspect and preservation of the suit property
Because the final mortgage account remained undetermined, justice required preservation of the property until the intended appeal conclusively settled the accounts
The applicant feared imminent public auction of her home. The court noted the respondent's concession that the final account was yet to be calculated, and held that preserving the property pending determination of the accounts best served the interest of justice, each case on the nugatory limb being decided on its own merits.
Conduct of the lender in demanding payment from a deceased borrower
The respondent's conduct in writing to the deceased after his death, feigning ignorance of it and denying insurance cover, was mischievous, callous and distressing
The court condemned, though it said no more, the respondent's letter of 24th September 1999 demanding Shs.2,055,351/70 from the deceased personally after being notified of his death, describing it as unworthy of a reputable financial institution of the respondent's standing.
Legal principles established
#- On a rule 5(2)(b) application an applicant must first show the intended appeal is arguable or not frivolous, and secondly that the appeal, if successful, would be rendered nugatory unless a stay or injunction is granted
Court orders
#- 1.An injunction issued restraining the respondent, its agents and/or servants from advertising, selling or in any other way disposing of the suit premises L.R. No. NRB/BLOCK 32/677 Ngumo Estate pending the lodging, hearing and determination of the intended appeal
- 2.The injunction granted subject to the applicant paying the respondent Shs.500,000/= within 30 days from the date of the ruling, in default of which the application shall stand dismissed
- 3.Costs of the application to be in the intended appeal
- On appeal from
- High Court of Kenya at Nairobi
- H.C.C.C. No. 294 of 2003 (O.S.)
- 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, "ANNE N. PARMENA v HOUSING FINANCE COMPANY OF KENYA LTD (Civil Application 132 of 2007) (Civ) [2007] KECA 72 (KLR)", Case Analysis (2007). Civil Appeal (Application) Nai 132 of 2007 (UR. 85/07). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2007/72/eng@2007-07-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.