Bawan Roses Limited v Barclays Bank of Kenya Limited [2008] KECA 98 (KLR)
The bottom line
#The Court of Appeal refused to stop Barclays Bank from selling a borrower's charged land, ruling the appeal was weak and a signed sale agreement had already changed the game.
What this practically means
#Executive summary
#Key legal issues
#Arguability of the intended appeal against refusal of an interlocutory injunction
The intended appeal was not arguable because the draft grounds faulted the judge for not making findings of fact which could not be made at an interlocutory stage, and no arguable points arose from the letters admitting indebtedness
Where the order appealed against is discretionary, the applicant must show reasonable arguments that the superior court misdirected itself by failing to consider relevant matters or by considering irrelevant ones. The grounds here instead demanded final findings of fact, which the trial court properly declined to make at the interlocutory stage. The finding of no prima facie case rested on three letters admitting indebtedness, and no arguable construction points arose from them.
Effect of the intervening agreement of sale dated 24th September 2008
The agreement of sale divested the bank of its rights as mortgagee, pre-empted the application and rendered it futile; the Court had no jurisdiction in the proceedings to adjudicate its legality
By executing the agreement of sale with Diana International Limited, the bank divested itself of its mortgagee rights and conferred rights to the properties, subject to completion, on the purchaser. The legality of that agreement could only be questioned in an appropriate forum. Until it was set aside, an injunction pending appeal could not achieve its purpose, so it was unnecessary to decide the nugatory question.
Whether an injunction pending appeal should issue on the nugatory and hardship test
An injunction would inflict greater hardship on the bank and the purchaser than it would avoid
Following Madhupaper International Ltd v Kerr, it would be wrong to grant an injunction where the appeal is frivolous or where granting it would inflict greater hardship than it would avoid. Here the properties were already subject to a sale agreement with a completion date, so an injunction would cause greater hardship to the bank and the purchaser than it would avoid.
Legal principles established
#- An applicant for an injunction under Rule 5(2)(b) must show the appeal is arguable and that refusal would render the appeal nugatory
- An appellate court will not interfere with a trial judge's exercise of discretion unless the judge misdirected himself or was clearly wrong resulting in injustice
- An intended appeal against refusal of an interlocutory injunction must show reasonable arguments that the judge misdirected himself by failing to consider relevant or by considering irrelevant matters, not mere disagreement with factual findings not open at interlocutory stage
- An executed agreement of sale by a mortgagee pre-empts and renders futile an application for injunction pending appeal, and the legality of such agreement can only be questioned in an appropriate forum
Court orders
#- 1.Application for injunction pending appeal dismissed
- 2.No orders as to costs
- On appeal from
- High Court of Kenya at Nyeri
- H.C.C.C. No. 78 of 2007
- 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, "Bawan Roses Limited v Barclays Bank of Kenya Limited [2008] KECA 98 (KLR)", Case Analysis (2008). Civil Appli. Nai 178 of 2008 (UR. 112/2008). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2008/98/eng@2008-10-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.