Enoka Watako Makokha v Co-operative Bank of Kenya [2015] KECA 429 (KLR)

Court of Appeal of Kenya

30 July 2015

D. K. Maraga SKS. Gatembu Kairu AMA. K. Murgor

864 words in judgment

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The bottom line

Kenya's Court of Appeal refused to stop a bank from selling a borrower's land, saying it will not second-guess a judge's discretionary decisions unless they are clearly wrong.

What this practically means

Executive summary

The appellant charged his property, North Wanga/Matungu/1890, to the Co-operative Bank of Kenya Limited to secure a loan facility. After alleged default, the bank moved to exercise its statutory power of sale. The appellant's application for a temporary injunction restraining the sale was dismissed by the High Court at Bungoma (Muchelule, J) on 13th March 2012, prompting this appeal. Before the Court of Appeal, the appellant argued that the requisite statutory notice and the auctioneers' notice had not been served on him, that payments he had made to the bank were not reflected in its statements, and that the bank's power of sale had not accrued. The bank, through Mr. Anwar, countered that notices were duly served by registered post in accordance with the instrument of legal charge, relying on Kyangovo vs Kenya Commercial Bank Ltd, and that a dispute over the amount owed cannot stop a chargee from realising its security, citing John Nduati Kariuki t/a Johester Merchants vs National Bank of Kenya Ltd. The Court of Appeal noted that the substantive suit remained pending before the High Court and therefore exercised restraint in its pronouncements. Applying the Giella v Cassman Brown principles and the Mbogo v Shah standard on interference with judicial discretion, the court found no misdirection or plainly wrong decision by the learned judge. The appeal was dismissed, with the costs of the appeal to abide the outcome of the pending suit, which the High Court was directed to dispose of on a priority basis. The judgment is a single judgment of the whole court, dated and delivered at Busia on 30th July 2015.

Key legal issues

Interference with judicial discretion in interlocutory injunction decisions

Holding

The Court of Appeal declined to interfere with the High Court's refusal of the temporary injunction because the judge neither took into account irrelevant considerations nor failed to take relevant ones into account, and his decision was not plainly wrong.

Reasoning

The court rested on the Mbogo v Shah standard: an inferior court's discretionary decision may be upset only where it is clearly wrong, having misdirected itself, acted on irrelevant matters, or failed to consider relevant matters, resulting in a wrong conclusion. Since the appellant demonstrated none of these errors in the ruling dismissing his injunction application, there was no basis for interference. The court also exercised restraint because the substantive suit remained pending before the High Court.

p. 2

Legal principles established

An appellate court will not interfere with the exercise of judicial discretion by an inferior court unless the decision is clearly wrong, because the court misdirected itself, acted on matters it should not have, or failed to consider matters it should have, and in doing so arrived at a wrong conclusion.
The grant or refusal of a temporary injunction guided by the Giella principles is an exercise of judicial discretion, and the circumstances in which the Court of Appeal can interfere with it are limited.

Court orders

1.The appeal fails and is dismissed
2.The costs of the appeal will abide the outcome of the pending suit in the High Court
3.The High Court is directed to dispose of the pending suit on a priority basis

Authorities

Cases cited (4)

Kyangovo vs. Kenya Commercial Bank Ltd and another
[2004] 1 KLR 126
John Nduati Kariuki t/a Johester Merchants vs. National Bank of Kenya Ltd
[2006] eKLR
Giella vs. Cassman Brown
[1973] E. A 358
Mbogo and Another vs. Shah
[1968] E A 93

On appeal from: High Court of Kenya at Bungoma; H.C.C.C. No. 9 of 2010
Jurisdiction invoked: First appeal to the Court of Appeal under the applicable appellate statute (not expressly cited in the judgment)

Key timeline

Practical implications

Frequently asked questions

Later judgments citing this (3)

Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Plaintiffs v Defendant Bank (temporary injunction application over Title No. Ngong/Ngong/15202)
[2019] KEHC 9082 (KLR)28 Mar 2019applied
Stephen Mwenda Kinyua v Sidian Bank Limited
[2019] KEHC 10038 (KLR)19 Feb 2019followed
Plaintiff/Applicant v 1st Defendant/Respondent & 2nd Defendant/Respondent (injunction application over KISUMU/NYALENDA 'B'/1674)
[2018] KEHC 1767 (KLR)6 Dec 2018followed

Cite this brief

Caselaw, "Enoka Watako Makokha v Co-operative Bank of Kenya [2015] KECA 429 (KLR)", Case Analysis (2015). Civil Appeal No. 76 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/429/eng@2015-07-30

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