Penelope Combo & another v National Bank of Kenya Ltd [2008] KECA 312 (KLR)
The bottom line
#Kenya's Court of Appeal refused to stop a bank selling a family home because money damages could compensate the owners if they later won their appeal.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the intended appeal against the ruling of Lesiit J is arguable and not frivolous
- 2.Whether, absent an injunction or stay of proceedings, the success of the intended appeal would be rendered nugatory
Key legal issues
#Whether the twin principles for relief under rule 5(2)(b) were satisfied
Although the court found a real risk the Kitisuru property would be sold before the appeal could be heard, the intended appeal was not shown to be more than arguable in a manner warranting relief because the applicants' loss was compensable in damages, so the application failed
The court restated the settled rule 5(2)(b) principles from Kagunyi Thande v Housing Finance Co. of Kenya Ltd, itself drawing on Githunguri v Jimba Credit Corporation Ltd No 2 and J.K. Industries Ltd v Kenya Commercial Bank Ltd. It accepted there was a real risk the matrimonial home would be sold before the appeal was heard, but aligned itself with the High Court's finding that damages would adequately compensate the applicants, meaning the nugatory-ness limb could not be satisfied.
Whether the High Court's interlocutory finding on adequacy of damages was correct
The Court of Appeal expressly endorsed Lesiit J's finding that any loss from the sale of the Kitisuru property could be adequately compensated by an award of damages
Lesiit J had dismissed the applicants' Order XXXIX application, finding their loss compensable by damages and that the balance of convenience favoured the bank. On the rule 5(2)(b) application, this court adopted that finding as fatal to the nugatory-ness limb, since a remedy in damages means the appeal's success would not be rendered nugatory by the sale.
Legal principles established
#- An applicant under rule 5(2)(b) must satisfy two cumulative principles: the appeal or intended appeal must be arguable, and the appeal's success must be rendered nugatory unless the injunction or stay is granted
- The jurisdiction under rule 5(2)(b) is both original and discretionary
Court orders
#- 1.The application by Notice of Motion dated 22nd November 2007 was dismissed with costs to the respondent National Bank of Kenya
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi, Milimani Commercial Courts
- H.C.C.C. No. 440 of 2003
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules
Relief refused
#Injunction restraining the bank from advertising for sale, selling by auction or otherwise interfering with LR No. 7741/71 (Kitisuru Property) pending the intended appeal
The case for granting the stay sought was not established because the applicants' loss, if any, could be adequately compensated by damages
Stay of further proceedings in Milimani HCCC No. 440 of 2003 pending the intended appeal
The court agreed with Lesiit J that the applicants' loss could be adequately compensated by an award of damages, so the nugatory-ness test failed
Costs
The application was dismissed with costs to the respondent National Bank of Kenya
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
For an applicant to succeed he must not only show that his appeal or intended appeal is arguable, but also that unless the court grants him an injunction or stay as the case may be, the success of that appeal will be rendered nugatory.
The Jurisdiction of the Court under rule 5(2) (b) is not only original but also discretionary.
We therefore dismiss the application by Penelope Combos and Anthony Combos by Motion dated 22nd November 2007 with costs to the respondent National Bank of Kenya.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Kenya Power & Lighting Company Limited v Kassim Wekhoba Toloi & another [2019] KEELRC 2454 (KLR)[2019] KEELRC 2454 (KLR)24 Jan 2019
- Kibos Sugar And Allied Industries Ltd v Stephen Otieno Adie & another [2018] KEELRC 248 (KLR)[2018] KEELRC 248 (KLR)6 Dec 2018applied
Cite this brief
#Cite this brief
Caselaw, "Penelope Combo & another v National Bank of Kenya Ltd [2008] KECA 312 (KLR)", Case Analysis (2008). Civil Application No. 287 of 2007. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2008/312/eng@2008-02-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.