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Court of AppealDismissedCivil Application No. 41 of 2013· [2014] KECA 820 (KLR)

Michael Kimutai Ronoh & 2 others v Consolidated Bank of Kenya Ltd

Court of Appeal
24 January 2014
2,212 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~9 min to read original · ~4 min brief

The bottom line

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The Court of Appeal refused to stop Consolidated Bank from selling charged land, because the borrowers failed to show their appeal was arguable and worth protecting.

What this practically means

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Executive summary

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The three applicants, chargors and guarantors for a loan advanced by Consolidated Bank of Kenya Ltd to Uday Patel & Company Limited, brought a Notice of Motion dated 30th October, 2013 under Rule 5 of the Court of Appeal Rules seeking injunctions restraining the bank from selling three land parcels offered as security, pending the hearing of the motion and of an intended appeal. The intended appeal challenged a ruling of Sila Munyao, J, of the High Court (Eldoret ELC No. 265 of 2013, delivered 24th September, 2013) dismissing their originating summons seeking postponement of the statutory power of sale. The applicants identified twelve grounds of appeal concerning the interpretation and application of sections 103, 104, 105 and 106 of the Land Act, 2012, Order 37 Rule 4 of the Civil Procedure Rules, matrimonial property claims and the judge's exercise of discretion. The Court presumed the application was brought under Rule 5(2)(b) and applied the settled twin test: the appeal must be arguable, and the appeal must be rendered nugatory if the order is not granted, citing Reliance Bank v Norlake Investments, Sivestein v Chesoni and Bob Morgan Systems v Jones. The Court held the questions raised would best be answered at the full hearing; it noted that no breach of covenant by the chargee was alleged, the recognized ground for interfering with a statutory power of sale, and declined to make conclusive findings on the judge's reasoning regarding redemption rights and matrimonial property. Concluding that neither limb of the Rule 5(2)(b) test was satisfied, the Court dismissed the application with costs on 24th January, 2014.

Key legal issues

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01

Whether the applicants met the twin test for relief under Rule 5(2)(b) of the Court of Appeal Rules

Holding

The applicants failed on both limbs; neither arguability nor nugatory-ness was demonstrated to the court's satisfaction

Reasoning

The court presumed the motion was brought under Rule 5(2)(b) and applied the settled principles from its prior decisions. It found the substantial arguable issues identified would best be answered at the full hearing, and concluded on the material and submissions before it that neither limb of the test was satisfied, so the injunction sought pending appeal could not issue.

p. 4
02

Whether the court should make conclusive findings on the chargee's conduct and matrimonial property claims at this interlocutory stage

Holding

No; those questions fall for determination at the full hearing of the appeal

Reasoning

The applicants did not allege breach of any covenant governing the charge, which is the recognized basis for interfering with a statutory power of sale. The High Court judge's views on the right of redemption and the absence of evidence of a matrimonial home were noted, but the Court of Appeal held it lacked jurisdiction to make conclusive decisions on them at this stage, reserving them for the full hearing.

p. 4

Legal principles established

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  • An applicant under Rule 5(2)(b) must satisfy the court both that the appeal is arguable (not frivolous) and that, absent the order, the success of the appeal would be rendered nugatory
  • A court will interfere with a proposed sale through a statutory power of sale where it is shown that the chargee is guilty of breach of covenant

Court orders

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  1. 1.The Notice of Motion dated 30th October, 2013 is dismissed
  2. 2.Costs of the application awarded to the respondent
On appeal from
High Court of Kenya at Kisii (Environment and Land Court, Eldoret)
Eldoret ELC No. 265 of 2013
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules (application for injunction/stay pending appeal)

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, "Michael Kimutai Ronoh & 2 others v Consolidated Bank of Kenya Ltd", Case Analysis (2014). Civil Application No. 41 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/820/eng@2014-01-24

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