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Court of AppealAllowedCivil Application No. Nai. 232 of 2013· [2014] KECA 607 (KLR)

Peter Nganga Muiruri v Co-operative Bank of Kenya Ltd & 2 others [2014] KECA 607 (KLR)

Court of Appeal
10 April 2014
2,302 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal stopped a bank from selling charged land because it never registered its ownership of the charge.

What this practically means

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Executive summary

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This was an interlocutory application under rule 5(2)(b) of the Court of Appeal Rules seeking an injunction pending an intended appeal against the judgment of Kamau, J delivered on 31st July 2013 in H.C.C.C. No. 235 of 2008. The applicant had created two charges in 1994 and 1995 over Nyandarua/Nandarasi/332 and LR No. 12959/3 Nairobi to secure a loan advanced to Intertwin Company Limited by Co-operative Finance Limited. Following alleged failure to repay, statutory notices of sale were issued and the High Court upheld the charge instruments as including successors and assigns. Before the Court of Appeal, the applicant argued that the charges had never been transferred or registered in favour of the 1st respondent, that the statutory notices were defective and expired, and that land control board consent was required. The 1st respondent relied on a 12th July 2002 agreement and Gazette notification transferring the Chargee's assets and liabilities. The court restated the settled rule 5(2)(b) principles from Reliance Bank Ltd v Norlake Investments Ltd: the applicant must show an arguable appeal and that refusal of the injunction would render the appeal nugatory. Finding that unresolved questions surrounded the legitimate ownership of the charges, particularly the unregistered assignment over Nyandarua/Nandarasi/332, the court held the appeal arguable and that sale of the properties would destroy the substratum of the appeal. The application was allowed in terms of the Notice of Motion, with costs in the intended appeal.

Key legal issues

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01

Whether the intended appeal is arguable

Holding

The intended appeal is arguable because questions remain whether the 1st respondent, as unregistered transferee of the charges, had capacity to issue statutory notices of sale or exercise the statutory power of sale.

Reasoning

The applicant's central complaint was that the transfer of the charges from Co-operative Finance Limited to the 1st respondent was never registered against the charged properties. The court held that this raised live questions: if the charge was not registered in the 1st respondent's name, were the statutory notices valid, and on what authority could the properties be sold? Without determining the merits, the court found these issues sufficient to render the appeal arguable and not frivolous.

p. 4
02

Whether the appeal would be rendered nugatory without an injunction

Holding

The appeal would be rendered nugatory if the 1st respondent proceeded to dispose of the charged properties, since the substratum of the appeal would be lost to the applicant's prejudice.

Reasoning

The court noted it was undisputed that no transfer or assignment of the charge over Nyandarua/Nandarasi/332 had been registered in favour of the 1st respondent, and that the 12th July 2002 agreement provided for formal assignment of securities. The questions of legitimate ownership of the charges would remain unaddressed if the properties were sold, destroying the substratum of the appeal. The court therefore considered it prudent to forestall the sale pending the intended appeal.

p. 4

Legal principles established

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  • An application under rule 5(2)(b) of the Court of Appeal Rules must satisfy two requirements: an arguable appeal and that the appeal would be rendered nugatory without the stay or injunction.
  • Where unresolved questions surround the legitimate ownership of charges over charged properties, the Court may forestall their sale to preserve the substratum of the intended appeal.

Court orders

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  1. 1.The application is allowed in terms of the Notice of Motion dated 23rd August 2013, granting an injunction restraining the 1st respondent from applying or presenting for registration or registering a transfer of the charge dated 6th October 1994 over title No. Nyandarua/Nandarasi/332 and restraining the respondents from selling, transferring, disposing of or alienating title No. Nyandarua/Nandarasi/332 and LR No. 12959/3 pending hearing and determination of the intended appeal
  2. 2.Costs of the application to be in the intended appeal

Authorities

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Legislation

  • Court of Appeal RulesRule 5(2)(b)
  • Registered Land Act (now repealed)section 74
  • Companies Actsection 20
  • Banking Actsection 9
  • Limitation of Actions Actsection 19(1)

Cases cited (1)

  • Reliance Bank Ltd (In Liquidation) vs. Norlake Investments Ltd
    Civil Appl. No. Nai. 93/02 (UR)
On appeal from
High Court of Kenya at Nairobi
H.C.C.C. No. 235 of 2008
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 Nganga Muiruri v Co-operative Bank of Kenya Ltd & 2 others [2014] KECA 607 (KLR)", Case Analysis (2014). Civil Application No. Nai. 232 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/607/eng@2014-04-10

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