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Court of AppealDismissedCivil Application No. NAI 306 of 2013 (UR 223/2013)· [2014] KECA 278 (KLR)

Peter Kamau Ikigu v Barclays Bank of Kenya Ltd & 1 other

Court of Appeal
7 November 2014
PKP. O. KiageKMK. M'InotiAMA. K. Murgor
2,601 words in judgment
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The bottom line

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Kenya's Court of Appeal dismissed a bid to freeze a property and halt taxation of costs, confirming courts won't restrain events that have already happened.

What this practically means

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Executive summary

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This Court of Appeal ruling at Nairobi (Kiage, M'Inoti and Murgor, JJ.A) disposed of a Motion under Rule 5(2)(b) of the Court of Appeal Rules by Peter Kamau Ikigu, who had lost before Odunga, J. on 27 February 2013 in HCCC No. 719 of 2003 a suit challenging the statutory power of sale exercised by Barclays Bank of Kenya over L.R. No 2/653 Kilimani, Nairobi, sold to Peterson Ogino Ongaro. His appeal (Civil Appeal No. 233 of 2013) was pending. He sought an injunction against dealings with the suit property, prohibition of registration of dealings, and stay of taxation of the respondents' Bills of Costs totalling over Kshs 14 million pending appeal. The first two prayers failed because the property had already been transferred to Westlands Residential Resort Ltd, a non-party; granting them would have been futile or would have violated that party's right to be heard. On the third prayer, the applicant argued only the 2nd respondent's inability to refund costs, omitting to demonstrate an arguable appeal. The court restated the twin principles for Rule 5(2)(b) relief: the intended appeal must be arguable and, if successful, not rendered nugatory; failure on either is fatal. It entertained real doubts about arguability, held the stay of taxation premature and speculative before taxation, and found no demonstrated risk of irrecoverability. The application was dismissed with costs to the respondents. The decision does not disturb the High Court judgment, which remains subject to the pending appeal.

Key legal issues

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01

Twin principles governing Rule 5(2)(b) applications

Holding

The applicant bears the onus of establishing both that the intended appeal is arguable and that it would be rendered nugatory; failure on either ground warrants dismissal.

Reasoning

The court restated the settled principles from Republic v Municipal Council of Mombasa ex parte Adopt A Light: jurisdiction under Rule 5(2)(b) is original and discretionary, and the supplicant must satisfy both requirements, considered against the facts of each case. Failure to satisfy any one of the twin principles is sufficient to dispose of the application.

p. 3
02

Stay of taxation of Bills of Costs as relief under Rule 5(2)(b)

Holding

An order for costs, including pending taxation, may in principle be the subject of a stay application, but such a stay is premature and speculative before taxation and where the applicant has not demonstrated an arguable appeal on the substantive judgment.

Reasoning

The court held that the fate of the costs order is bound to the success of the entire appeal, which the applicant avoided arguing. Bills not yet taxed allow the applicant to object at taxation, and the taxing master's discretion is ordinarily deferred to; the statutory process for challenging taxation had not been invoked.

p. 4
03

Nugatory requirement and ability to refund

Holding

Residence abroad and name discrepancies do not, without more, show that costs paid cannot be recovered, especially where enforcement procedures exist but were not invoked.

Reasoning

The court found no basis to doubt the 1st respondent's ability to refund costs, and rejected the inference that the 2nd respondent's non-residence or variation in his names would render a successful appeal nugatory, noting the applicant had not pursued existing legal enforcement procedures in prior disputes.

p. 4

Legal principles established

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  • An applicant under Rule 5(2)(b) must satisfy both the arguability of the intended appeal and that it would be rendered nugatory absent stay; failing either suffices for dismissal.
  • An arguable appeal need not be one that must succeed; it is one that is not frivolous and deserves to be heard.
  • No injunction will issue to restrain an event that has already occurred.
  • Courts will not make orders against parties who are not before them and have not been heard.
  • Where arguability is not shown, the court need not consider the nugatory limb.

Court orders

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  1. 1.Dismissal of the applicant's Motion under Rule 5(2)(b)
  2. 2.Costs of the application awarded to the respondents
On appeal from
High Court of Kenya at Nairobi
HCCC No. 719 of 2003
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Peter Kamau Ikigu v Barclays Bank of Kenya Ltd & 1 other", Case Analysis (2014). Civil Application No. NAI 306 of 2013 (UR 223/2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/278/eng@2014-11-07

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.