Kenline Agencies Ltd v Housing Finance Company of Kenya & John Githua Njogu (Civil Application 83 of 2007) (Civ) [2007] KECA 312 (KLR)
The bottom line
#The Court of Appeal barred the sale or transfer of disputed land but let the registered buyer keep possession while the appeal is decided.
What this practically means
#Executive summary
#Key legal issues
#Test for injunction/stay pending appeal under Rule 5(2)(b)
The applicant must establish both an arguable appeal and that the appeal would be rendered nugatory without the orders; the discretion is original and unfettered once those thresholds are met.
The court restated the settled twin principles and applied them to the facts. It found the appeal not frivolous after considering the nine grounds, including the lis pendens point, but declined detailed merits discussion once the appeal was lodged. On nugatory-ness, it assessed whether success on appeal could still be effective given the purchaser's registration.
Effect of purchaser's registration on the claim for possession
Prayer 1 failed because the registered purchaser is, by virtue of section 23 of the Registration of Titles Act, the absolute and indefeasible owner entitled to possession unless and until his registration is cancelled; denying him possession pending appeal would be inequitable.
The court noted that the purchaser had paid Shs.11,000,000, had been registered as proprietor and held a certificate of title. The applicant sought an equitable remedy; equity could not displace the registered proprietor's statutory entitlement to possession before the appeal and pending suit were determined.
Protection against alienation pending appeal
The appeal would be rendered nugatory if the purchaser alienated the suit land before the appeal was heard and determined; the poorly drafted third prayer could be modified into an injunction restraining alienation, charging or registration of dealings until Civil Appeal No. 84 of 2007 was determined.
Although the applicant's possession could be restored on success, alienation to a third party would defeat the appeal. The court therefore moulded the defective prayer 3 into an appropriate restraint against the purchaser only, rejecting prayers 1 and 2.
Whether the doctrine of lis pendens applies to a mortgagee's sale under statutory power of sale
The court declined to decide this question, holding it inappropriate to discuss the merits in detail once the appeal was lodged and the issue should be determined at the full hearing of the appeal.
Counsel for the applicant argued the transfer breached the lis pendens doctrine in section 52 of the Transfer of Property Act, 1882, while counsel for the respondents contended the doctrine does not apply to transfers under statutory power of sale and that the equity of redemption had been extinguished under section 60. The court found the appeal arguable without deciding the point.
Legal principles established
#- An applicant under Rule 5(2)(b) must satisfy the court both that the appeal or intended appeal is arguable and that, unless the order sought is granted, the appeal would be rendered nugatory.
- A registered purchaser under the Registration of Titles Act holds an indefeasible title and is entitled to possession until that registration is cancelled, so interlocutory relief protecting possession will not issue in his favour.
- An appeal is not rendered nugatory where, even if the applicant is dispossessed, its success would restore the applicant to the premises pending determination of the suit.
Court orders
#- 1.An order of injunction restraining the second respondent John Githua Njogu from disposing of, alienating, charging or registering any dealing in L.R. No. 209/11475 title No. I.R. 17003 until the determination of Civil Appeal No. 84 of 2007
- 2.Costs of the application to be costs in the cause of appeal
- On appeal from
- High Court of Kenya at Milimani Commercial Court, Nairobi
- H.C.C.C. No. 668 of 2006
- Jurisdiction invoked
- Rules 5(2)(b), 1(2) and 42 of the Court of Appeal Rules
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- In the Matter of the Estate of Mary Njeri Kuria (Deceased)[2011] KEHC 4155 (KLR)27 Jan 2011applied
Cite this brief
#Cite this brief
Caselaw, "Kenline Agencies Ltd v Housing Finance Company of Kenya & John Githua Njogu (Civil Application 83 of 2007) (Civ) [2007] KECA 312 (KLR)", Case Analysis (2007). Civil Appli 83 of 2007 (UR 55/2007). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2007/312/eng@2007-06-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.