Frederick Gathithi Kabue v Cannon Assurance Kenya Limited
The bottom line
#The Court of Appeal refused to stop the sale of a guarantor's property, ruling his intended appeal was not arguable and his application deserved no relief.
What this practically means
#Executive summary
#Key legal issues
#Whether the intended appeal was arguable under rule 5(2)(b)
The intended appeal was not arguable; the issues had been raised or were available in previous suits, and a valid decree for vacant possession remained in force.
The applicant had twice previously sought injunctions unsuccessfully, and a court of equal jurisdiction had granted the respondent a decree for vacant possession that was never set aside. The High Court had found the fresh suit an abuse of process. The court declined to appreciate the distinction counsel drew between vacant possession and sale, holding any difference was of no consequence, and found the arguability threshold unsatisfied.
Whether the nugatory limb required separate consideration
Once the intended appeal is not arguable, the nugatory question does not arise; in any event the applicant would gain nothing since the vacant possession decree was still in existence.
The court explained that arguability is the gateway: failing it disposes of the motion. Even on the second limb, an existing decree for vacant possession meant the orders would not preserve anything of value, and the applicant as guarantor had known his property was exposed to sale on default of the loan.
Legal principles established
#- An applicant under rule 5(2)(b) must demonstrate first that the appeal or intended appeal is arguable (not frivolous), and secondly that if the orders are refused and the appeal succeeds, the results would be rendered nugatory.
- Where the appeal or intended appeal is not arguable, the nugatory-justice question does not arise; arguability is determinative.
Court orders
#- 1.The notice of motion is dismissed with costs to the respondent
- On appeal from
- High Court of Kenya at Milimani Commercial Courts
- H.C.C.C No. 151 of 2008
- 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, "Frederick Gathithi Kabue v Cannon Assurance Kenya Limited", Case Analysis (2008). Civil Appli. Nai No. 133 of 2008 (UR 85/2008). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2008/95/eng@2008-10-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.