Henry Wanyama Khaemba v Standard Chartered Bank (K) Limited [2008] KECA 153 (KLR)
The bottom line
#Kenya's Court of Appeal stopped a bank from auctioning a Kshs.22 million property, confirming that a 'nugatory' appeal deserves protection even if money could later compensate.
What this practically means
#Executive summary
#Key legal issues
#The twin requirements for relief under Rule 5(2)(b) of the Court of Appeal Rules
The Court applied the established test: the applicant must show the intended appeal is arguable and that it would be rendered nugatory without the order sought.
The Court adopted its prior statement in Samuel Naiba Kihara vs Housing Finance Company of Kenya Ltd, supported by earlier authorities. It found the issues on the applicability of the Central Bank (Amendment) Act 2000 interest provisions and on whether the suit was res judicata were not frivolous, satisfying the arguability limb. On the nugatory limb, the applicant risked losing property worth Kshs.22 million for a claim of Kshs.4.1 million interest after already paying Kshs.5.8 million, and mere capacity to compensate the loss was insufficient.
Whether failure to annex a draft memorandum of appeal defeats a Rule 5(2)(b) application
It does not; the grounds of the intended appeal may be stated in the body of the application or the supporting affidavit.
The respondent's counsel complained that no draft memorandum of appeal was filed or annexed. The Court, however, read Rule 5(2)(b) itself, which permits the Court to order a stay or injunction where a notice of appeal has been lodged, and held that the rule imposes no requirement of a draft memorandum; the supporting affidavit here set out the grounds, including material non-disclosure and the res judicata findings.
Legal principles established
#- An applicant under Rule 5(2)(b) must satisfy the Court both that the intended appeal is arguable and that, absent the order sought, the appeal would be rendered nugatory.
- On an application under Rule 5(2)(b), it is not necessary to file a draft memorandum of appeal; it is sufficient if the grounds of the intended appeal are stated in the body of the application or the supporting affidavit.
- It is not enough for a respondent to resist relief under Rule 5(2)(b) merely by contending that it is capable of compensating the applicant for any loss.
Court orders
#- 1.Temporary injunction restraining the respondent from auctioning, alienating, disposing of or interfering with the applicant's ownership and/or possession of L.R. No. 209/3890 I.R 32478 Nairobi pending the hearing and determination of the intended appeal
- 2.Stay of execution of the order for costs awarded against the applicant in HCCC No. 560 of 2006 Nairobi, Milimani, pending the hearing and determination of the intended appeal
- 3.Costs of the application to be in the intended appeal
- On appeal from
- High Court of Kenya at Nairobi, Milimani Commercial & Tax Division
- H.C.C.S. No. 560 of 2006
- Jurisdiction invoked
- Rules 5(2)(b) and 1(2) of the Court of Appeal Rules, in an intended appeal from the High Court
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Henry Wanyama Khaemba v Standard Chartered Bank (K) Limited [2008] KECA 153 (KLR)", Case Analysis (2008). Civil Application Nai. No. 67 of 2008. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2008/153/eng@2008-07-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.