St. Ann’s Limited v Planfarm Limited& another [2009] KECA 286 (KLR)
The bottom line
#Kenya's Court of Appeal refused to protect a borrower's auctioned property, stressing that naming the wrong party alone can sink a legal application.
What this practically means
#Executive summary
#Key legal issues
#Misjoinder of the 1st respondent in the rule 5(2)(b) application
The application failed on the ground that the 1st respondent, Planfarm Limited, was not the 1st defendant in the superior court and was a stranger to those proceedings; no orders could be made against it.
In the superior court the 1st defendant was Planfarm Investment Company Limited, whereas the application before the Court of Appeal named Planfarm Limited. The Court accepted counsel's submissions that orders against a stranger to the suit would be orders against a wrong party, and that this alone warranted dismissal, before proceeding to consider the merits.
Arguability of the intended appeal
The Court expressed serious doubts on the arguability of the intended appeal given the unchallenged facts of default in loan repayment and the sale of the charged property by public auction.
Although the Court was slow to declare an intended appeal unmeritorious at that stage, it noted the unchallenged facts that the applicant defaulted in repaying the loan, notices were issued, and the property was sold at public auction with the 2nd respondent as purchaser. On those facts the Court doubted that the appeal raised arguable points.
Nugatory-ness of the intended appeal
Even assuming the appeal was arguable, it would not be rendered nugatory because the dispute related to charged property of easily ascertainable value, compensable by damages.
The property in dispute was security for a loan and could be easily valued. The applicant itself had claimed general damages in its plaint. The claim was therefore capable of compensation by an award of damages, so the second limb of the rule 5(2)(b) test was not satisfied.
Legal principles established
#- Under rule 5(2)(b) of the Court of Appeal Rules, an applicant must satisfy two principles: that the intended appeal is arguable (not frivolous), and that unless the injunction or stay is granted, the appeal, if successful, will be rendered nugatory.
- The jurisdiction under rule 5(2)(b) is original and discretionary.
- An appellate court will not grant orders against a party who was not a party to the proceedings in the superior court; an application naming such a stranger as respondent must be dismissed on that ground alone.
- Where a dispute relates to charged property of ascertainable value, damages are an adequate remedy and the nugatory-ness limb of rule 5(2)(b) will not be satisfied.
Court orders
#- 1.The notice of motion dated 24th March, 2009 is dismissed with costs
- On appeal from
- High Court of Kenya at Milimani Commercial Courts
- H.C.C.C. No. 565 of 2008
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (3)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Anita Chelagat O'Donovan & 2 Others v 1st and 2nd Defendants and a Bank (3rd Defendant)[2015] KEHC 581 (KLR)21 Oct 2015
- Koileken Ole Kipolonka Orumoi v Mellech Engineering & Construction Limited & Others[2015] KEHC 6116 (KLR)16 Mar 2015
- Shimmers Plaza Limited v National Bank of Kenya Ltd [2013] KECA 359 (KLR)[2013] KECA 359 (KLR)15 Mar 2013followed
Cite this brief
#Cite this brief
Caselaw, "St. Ann’s Limited v Planfarm Limited& another [2009] KECA 286 (KLR)", Case Analysis (2009). Civil Appli. 79 of 2009 (UR 48/2009). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2009/286/eng@2009-06-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.