Collin Bett T/A C.K. Bett Traders v Ecobank Kenya Limited & another [2014] KECA 246 (KLR)
The bottom line
#Kenya's Court of Appeal refused to stop the sale of a charged property because the borrower missed both legal tests and broke a prior court-approved deal.
What this practically means
#Executive summary
#Key legal issues
#Arguability of the intended appeal
The applicant failed to raise an arguable appeal; the court entertained serious doubts as to arguability given the applicant's inaction and breach after the consent order
The court noted that after the consent order in which the applicant admitted the debt and the issuance of the statutory notice, the applicant took no steps to redeem the property and appeared intent on obstructing the bank's statutory power of sale. A doubtful case on arguability does not satisfy the first limb, though the view is preliminary.
Nugatory value of the intended appeal
The appeal would not be rendered nugatory because the suit property is capable of valuation and the applicant can be compensated in damages by the bank
The applicant did not suggest the bank would be unable to repay the amount realised from the sale. Citing Daniel Kamita Gichuhi and St. Ann's Limited, the court held that where property offered as security is at stake, valuation and damages provide adequate compensation, so no nugatory prejudice arises.
Effect of the applicant's conduct on equitable relief
The applicant's breach of the consent order, including late payment of the auctioneer's costs, rendered him undeserving of an injunction
Under the consent the applicant was to pay Kshs 200,000 within 40 days, i.e. before 15th July 2012, but paid on 24th October 2012. Following David Kamau Gakuru, the court held that as an equitable remedy an injunction should not issue to a party whose conduct shows him undeserving of it.
Legal principles established
#- An applicant under rule 5(2)(b) must demonstrate both that the intended appeal is arguable and that it would be rendered nugatory if stay or injunction is not granted
- Where charged property can be valued and the applicant compensated in damages, the nugatory principle is not satisfied
- A charged property, even a residential one, becomes a commodity for sale and sentimental attachment cannot resist the statutory power of sale
- Conduct in breach of a consent order disentitles an applicant to equitable relief by way of injunction
Court orders
#- 1.The application under rule 5(2)(b) is dismissed
- 2.Costs of the application awarded to the 1st respondent
- On appeal from
- High Court of Kenya at Machakos
- H.C.C.C. No 120 of 2012
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules
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.
- Johnson Nduya Muthama v Director of Public Prosecutions & 4 others [2016] KECA 309 (KLR)[2016] KECA 309 (KLR)29 Jul 2016followed
- Dinesh Kumar Jetha v Fina Bank Limited [2016] KECA 448 (KLR)[2016] KECA 448 (KLR)17 Jun 2016
Cite this brief
#Cite this brief
Caselaw, "Collin Bett T/A C.K. Bett Traders v Ecobank Kenya Limited & another [2014] KECA 246 (KLR)", Case Analysis (2014). Civil Application No NAI 182 of 2014 (UR 141/2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/246/eng@2014-11-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.