Bernard Chepkwony Mutai v Housing Finance Company of Kenya Ltd & 2 Others [2009] KECA 371 (KLR)
The bottom line
#Kenya's Court of Appeal refused to stop an eviction, ruling that a borrower who cannot repay a loan cannot block a lawful property sale when money damages would cover any loss.
What this practically means
#Executive summary
#Key legal issues
#Arguability of the intended appeal under Rule 5(2)(b)
The intended appeal was not arguable; the statutory power of sale had arisen and was properly exercised, and any loss the applicant may suffer is recoverable in damages.
The applicant executed a charge in 1998 to secure a loan of Shs.6,000,000, defaulted, and the first respondent exercised its statutory power of sale by private treaty, transferring the premises to the 2nd and 3rd respondents. Counsel conceded no repayment had been made, showing the applicant could not repay the loan. The High Court had found no prima facie case, and the Court agreed the judge's discretion was properly exercised.
Whether refusal of the injunction would render the intended appeal nugatory
The nugatory limb failed because damages payable by the first respondent would suffice to compensate the applicant.
Even if the appeal were arguable, the applicant had to show that its success would be rendered nugatory without the injunction. The Court found the applicant's possible loss was compensable in damages which the first respondent, a mortgagee company, could pay. The applicant therefore failed both limbs of the Rule 5(2)(b) test.
Legal principles established
#- Under Rule 5(2)(b), an applicant must satisfy the court that the intended appeal is arguable and that its success will be rendered nugatory unless the orders sought are granted; where damages payable by the successful party would suffice, the second limb is not satisfied.
- An appellate court will not interfere with a trial judge's exercise of discretion on an injunction application where the judge was right in the exercise of that discretion.
Court orders
#- 1.The application for stay of execution/injunction pending the intended appeal is dismissed
- 2.Costs of the application to the respondents
- On appeal from
- High Court of Kenya
- H.C.C.C. No. 20 of 2007
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Bernard Chepkwony Mutai v Housing Finance Company of Kenya Ltd & 2 Others [2009] KECA 371 (KLR)", Case Analysis (2009). Civil Appli 223 of 2007 (UR 138/2007). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2009/371/eng@2009-03-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.