Yusuf Kifuma Chanzu v Equity Bank Limited & another [2014] KECA 503 (KLR)
The bottom line
#The Court of Appeal refused to stop Equity Bank from selling property because the borrower showed neither an arguable appeal nor that the appeal would be meaningless without a halt.
What this practically means
#Executive summary
#Key legal issues
#Whether the applicant demonstrated an arguable appeal under Rule 5(2)(b)
The Court held the intended appeal was not arguable; the issues raised concerned construction of documents the trial judge considered carefully, and the disputed amount exceeded the undisputed guaranteed sum which the applicant had not offered to pay
The alleged arguable issues related primarily to construction of the charge and guarantee, which the trial judge examined carefully before dismissing the suit. The bank confirmed only the guaranteed amount was claimed from the applicant. The applicant also failed to demonstrate bona fides by paying what he did not dispute, so the first limb failed.
Whether the intended appeal would be rendered nugatory if the injunction was not granted
The nugatory limb failed because the applicant made no averment that the respondent bank would be unable to refund any sums paid in satisfaction of the decree should the appeal succeed
Even if the first limb had been satisfied, the Court would have refused the injunction. The burden rests on the applicant to show the respondent cannot refund monies paid under the decree. There was absolutely no averment by the applicant that the 1st respondent was incapable of refunding money in the event the appeal succeeded.
Whether the Court should grant relief to an applicant who obtained conditional stay in the High Court and failed to comply
The applicant had already obtained substantially the same orders from Ogola, J. on conditions, failed to comply, and did not appeal against that order; following Hunker Trading, such conduct is an abuse of process and the application is incompetent
The applicant sought from this Court orders substantially the same as those granted by the High Court on conditions he ignored. He filed no notice of appeal against Ogola, J.'s order and did not challenge the conditions as onerous or unjust. This Court followed Hunker Trading in treating such an application as an abuse of process and a waste of judicial resources.
Legal principles established
#- To obtain an injunction pending appeal under Rule 5(2)(b), an applicant must satisfy both limbs - an arguable appeal and that the appeal will be rendered nugatory if the order is not granted; satisfying only one limb is insufficient
- Courts will not normally grant an injunction to restrain a mortgagee from exercising its statutory power of sale solely on the ground that there is a dispute on the amount due under the mortgage
- An applicant who has obtained stay on conditions from the High Court, failed to comply with those conditions and not appealed against that order cannot invoke Rule 5(2)(b); such an application is incompetent and an abuse of process
- The burden is on the applicant under the nugatory limb to satisfy the Court that the respondent will not be able to refund any sums paid in satisfaction of the decree
Court orders
#- 1.The application dated 11th September, 2013 is dismissed with costs to the 1st respondent
- 2.No costs awarded to the 2nd respondent who did not participate in the application
- On appeal from
- High Court of Kenya at Nairobi
- HCCC No. 762 of 2009
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules (appellate jurisdiction to grant injunctions pending appeal)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (6)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Opondo & another v Sanya & another (Civil Application E029 of 2023) [2023] KECA 662 (KLR)[2023] KECA 662 (KLR)9 Jun 2023
- Jaffarali Kassam Abdulla v Pauline Mutee Makumu & another [2021] KECA 889 (KLR)[2021] KECA 889 (KLR)19 Mar 2021followed
- Jerim O. Obure vs Co-operative Bank of Kenya Limited (Stay of Execution Pending Appeal)[2020] KEHC 3022 (KLR)28 Sept 2020
- Dinesh Kumar Jetha v Fina Bank Limited [2016] KECA 448 (KLR)[2016] KECA 448 (KLR)17 Jun 2016applied
- Joseph N. K. Arap Ngok & another v Eabs Bank Limited [2015] KECA 909 (KLR)[2015] KECA 909 (KLR)6 Mar 2015
- Kenya Engineering Workers Union v Kenya Marine Contractors EPZ Ltd (Cause 152 of 2012) [2014] KEELRC 302 (KLR)[2014] KEELRC 302 (KLR)5 Sept 2014
Cite this brief
#Cite this brief
Caselaw, "Yusuf Kifuma Chanzu v Equity Bank Limited & another [2014] KECA 503 (KLR)", Case Analysis (2014). Civil Application No. NAI 251 of 2013 (UR 181/2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/503/eng@2014-06-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.