MWANIKI WA NDEGWA V NATIONAL BANK OF KENYA LTD & 3 others [2009] KECA 176 (KLR)
The bottom line
#Kenya's Court of Appeal stopped the sale of a Lavington property pending appeal, but only after ordering the owner to keep paying KSh 150,000 monthly into a joint account.
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 (Civil Appeal No. 124 of 2008) is arguable
- 2.Whether the appeal would be rendered nugatory if the injunction and stay of execution are not granted pending appeal
Key legal issues
#Arguability of the intended appeal
The court was satisfied, without expressing any firm view on the merits, that the grounds of appeal were arguable and not frivolous.
The applicant raised 12 grounds, including the extent of a guarantor's liability to the chargee, the validity of a charge not stating the interest rate, and the validity of certificates under sections 69 and 100A of the Transfer of Property Act. Because the appeal was pending and could be heard at any time, the court refrained from expressing any firm view on the issues but found them arguable from the many angles presented and the rival submissions.
Whether the appeal would be rendered nugatory
The appeal would be rendered nugatory if the suit property was disposed of before the disposal of the appeal, though the court noted the bank and the purchaser were the most prejudiced parties and conditioned the relief accordingly.
The property had been auctioned, a memorandum of sale executed and a deposit of Shs. 12,000,000 paid. The applicant remained in occupation earning about Shs. 200,000 monthly rent, and the 4th respondent had bid Shs. 55,000,000. The court reasoned that the bank and purchaser would suffer greater frustration from a multiplicity of endless suits, and balanced this by attaching a monthly-payment condition to the stay and injunction.
Legal principles established
#- An applicant under rule 5(2)(b) must demonstrate that the intended appeal is arguable and that it would be rendered nugatory if the orders sought are not granted; such relief may properly issue on conditions where third parties such as a chargee and auction purchaser would otherwise be prejudiced.
Court orders
#- 1.Prayers Nos. 2 and 3 of the amended notice of motion granted, restraining disposal of L.R. No. 3734/198 Lavington and staying execution of the judgment and decree in HCCC No. 86 of 2000 pending determination of Civil Appeal No. 124 of 2008
- 2.The applicant to pay Shs. 150,000/- per month with effect from 30th September 2009 into an interest-bearing account to be opened jointly by counsel for the applicant, the 1st respondent and the 3rd respondent
- 3.In default of payment of any one instalment the application shall stand dismissed
- 4.Costs of the application to be in the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Milimani Commercial Courts
- H.C.C.C. No. 86 of 2000
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules
Relief refused
#Unconditional restraint and stay without conditions
The court granted the relief but on condition of monthly payments, noting that the bank and purchaser would be prejudiced by endless suits and applications
Costs
The costs of this application shall be in the 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.
Having considered them from the many angles presented to us together with the rival submissions of the parties we are prepared to hold without deciding that they are, indeed, arguable and are not in any way frivolous.
Also, the appeal would be rendered nugatory if the suit property is disposed of before the disposal of the appeal.
Prayers Nos. 2 and 3 of the amended notice of motion are hereby granted.
In default of payment of any one installment this application shall stand dismissed.
The costs of this application shall be in the appeal.
Issues in the judgment
#The cause title lists the 3rd respondent as "WAMWA TRADING CO. LTD" but the body and orders refer to "Wauwa Trading Co. Ltd" and "Wamwa Trading Co. Limited", an internal inconsistency in the name of the auction purchaser.
The cause title describes the applicant as "APPLICANT" while prayer 1 of the motion refers to "the appellant/applicant's property"; the same person is styled inconsistently.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "MWANIKI WA NDEGWA V NATIONAL BANK OF KENYA LTD & 3 others [2009] KECA 176 (KLR)", Case Analysis (2009). Civil Appeal (Application) No. 141 of 2009 (UR 95/2009). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2009/176/eng@2009-09-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.