ANNE N. PARMENA (legal representative of the late Dr. William Kaaya Parmena Deceased) v HOUSING FINANCE COMPANY OF KENYA [2007] KECA 247 (KLR)
The bottom line
#Kenya's Court of Appeal blocked a lender from auctioning a widow's home pending appeal, but only after she paid Kshs 500,000 within 30 days.
What this practically means
#Executive summary
#Key legal issues
#Whether the intended appeal is arguable under rule 5(2)(b).
The intended appeal is arguable and not frivolous; the applicant satisfied the first principle.
Counsel for the applicant argued that the learned Judge erred in not finding that the requirements for a mandatory injunction had been met, that the outstanding loan ought to have been sorted out through the life insurance policy, and that interest was not payable because of the respondent's mistakes and errors of omission. Counsel for the respondent candidly conceded that the intended appeal was arguable because there was a dispute in the mortgage accounts. On those contentions and that concession, the Court agreed the intended appeal was arguable and not frivolous.
Whether the intended appeal, if successful, would be rendered nugatory unless the suit property is preserved.
Yes - in the circumstances, preservation of the property until the intended appeal is determined was in the best interest of justice.
The applicant's main fear was that the respondent, having notified her of an intention to advertise the property for public auction, would sell her only home; she was retired with no other place of abode. The respondent's counsel conceded that the final mortgage account had not been settled and that a considerable sum remained disputed. Applying the merits-based approach drawn from Butt and Oraro & Rachier, the Court held that preserving the property until the intended appeal conclusively settled the accounts served the best interest of justice.
The principles governing applications under rule 5(2)(b) of the Court of Appeal Rules.
An applicant must show the intended appeal is arguable or not frivolous and that, absent a stay or injunction, the appeal if successful would be rendered nugatory; these twin principles are well settled.
Relying on Githunguri v Jimba Credit Corporation Ltd (No. 2) and other recent authorities, the Court restated the twin criteria for relief pending appeal: arguability of the intended appeal, and the nugatory aspect if relief is refused. It treated these principles as settled and requiring no elaboration, and noted from Butt and Oraro & Rachier that the nugatory limb is evaluated case by case against the respective merits before the discretion is exercised. The Court then applied both limbs to the facts.
Legal principles established
#- On an application under rule 5(2)(b) of the Court of Appeal Rules, the applicant must first show that the intended appeal is arguable or not frivolous, and second that unless a stay of execution or an injunction (or both) is granted, the appeal or intended appeal, if successful, will be rendered nugatory.
- The nugatory aspect and the respective merits of the parties' cases must be assessed case by case before the discretion to grant a stay or injunction pending appeal is exercised.
- Where the final account underlying the decree is disputed and unascertained, the Court may preserve the suit property pending an intended appeal capable of conclusively settling the accounts, and may attach conditions such as a payment into the account, failing which the relief lapses.
Court orders
#- 1.An injunction issued in terms of Order No. 3 of the Motion dated 12th June 2007, restraining the respondent, its agents and 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 against the judgment and decree of Hon. Justice Fred A. Ochieng delivered on 5th December 2006.
- 2.The injunction granted subject to the applicant paying to the respondent the sum of Shs.500,000/= within 30 days from the date of the ruling; in default the application to 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 (application for an injunction pending an intended appeal)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "ANNE N. PARMENA (legal representative of the late Dr. William Kaaya Parmena Deceased) v HOUSING FINANCE COMPANY OF KENYA [2007] KECA 247 (KLR)", Case Analysis (2007). Civil Appli 132 of 2007 (UR.85/07). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2007/247/eng@2007-07-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.