JOHN MURITU KIGWE v EABS BANK LIMITED & 2 others [2009] KECA 153 (KLR)
The bottom line
#The Court of Appeal stopped the sale or transfer of a Juja property and blocked eviction, allowing the owner's challenge over missing statutory notices to proceed to 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 is arguable
- 2.Whether the intended appeal would be rendered nugatory unless the orders sought are granted
Key legal issues
#Whether the intended appeal was arguable
The Court found the grounds in the draft memorandum of appeal, including non-service of the demand and statutory notice under section 69 of the Transfer of Property Act, to be arguable.
After considering the issues raised in the draft memorandum of appeal, the Court accepted the applicant's submission that the grounds, principally that the applicant was never served with the demand to crystallise the debt or the three months' statutory notice, did not lack substance. This satisfied the first limb of the rule 5(2) test.
Whether the intended appeal would be rendered nugatory without interim relief
The Court held that if the suit property were further alienated the appeal would serve no useful purpose, justifying preservation of the status quo pending appeal.
On the nugatory limb, the Court reasoned that further alienation of the suit property would strip the intended appeal of useful purpose for the applicant, who seeks reversal of the sale and rectification of the register. It therefore directed that the status quo be observed and restrained the 3rd respondent from transferring, selling or disposing of the property or evicting the applicant until the appeal is determined.
Legal principles established
#- An applicant under rule 5(2) must satisfy the twin tests of an arguable appeal and that the appeal would be rendered nugatory if the orders sought are not granted; where further alienation of the suit property would render the appeal useless, an order preserving the status quo pending appeal may issue.
Court orders
#- 1.Status quo as of the date of the ruling to be observed by all parties
- 2.The 3rd respondent restrained from transferring, selling, disposing of the suit property or evicting the applicant therefrom until the intended appeal is determined
- 3.Costs to be in the intended appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi, Milimani
- H.C.C.C. No. 665 of 2008
- Jurisdiction invoked
- Rule 5(2) of the Court of Appeal Rules - application for injunction pending appeal
Relief refused
#Full injunction sought under rule 5(2) restraining all respondents from interfering with the suit property
The court granted only a limited order preserving the status quo rather than the full injunction sought
Costs
Costs herein shall be in the intended appeal.
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.
we accept the applicant's submission that the intended appeal is indeed arguable
if the suit property is further alienated the intended appeal in its present character would be of no useful purpose to the applicant
In the circumstances we allow the application to the extent that we order that the 3rd respondent shall not transfer, sell, dispose of the suit property or evict the applicant therefrom until the intended appeal is determined
Costs herein shall be in the intended appeal
Issues in the judgment
#The charge was executed as security for advances to Kelly Petroleum Limited, but the defence asserts demand notices were issued 'to the 1st respondent' which appears inconsistent with the parties' roles as described
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "JOHN MURITU KIGWE v EABS BANK LIMITED & 2 others [2009] KECA 153 (KLR)", Case Analysis (2009). Civil Application No. 95 of 2009. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2009/153/eng@2009-09-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.