Samson Mwathi Nyutu v Savings & Loan Kenya Limited [2015] KECA 460 (KLR)
The bottom line
#Kenya's Court of Appeal refused to stop the sale of a mortgaged property, holding that disputing the debt amount does not block a lender's statutory power of sale.
What this practically means
#Executive summary
#Key legal issues
#Whether the applicant demonstrated an arguable appeal under Rule 5(2)(b)
The applicant raised no arguable point; the grounds (failure to evaluate evidence, alleged overcharging, unproved fraud) did not disclose an arguable appeal
The Court applied the settled principles in Republic v Kenya Anti-Corruption Commission that an applicant must show the appeal is arguable and, additionally, that it would be rendered nugatory if stay is refused. On the authorities, a dispute over interest or sums due under a mortgage is not a good ground for injunctive relief. The Court declined to make definitive findings to avoid embarrassing the bench that would hear the appeal, but found no arguable point raised.
Whether the appeal would be rendered nugatory if stay were refused
No; the property is a commercial one yielding rent to the applicant, and the respondent, a reputable financial institution, would be able to compensate in damages if the appeal succeeded
Both sides agreed the mortgaged property was commercial and the applicant continued collecting rent which he did not remit to the respondent. The applicant did not show that damages would be an inadequate remedy, nor that the respondent, a reputable financial institution, would be unable to pay damages if ordered. The Court noted that statutory rights of a mortgagee prevail over sentiment attached to charged property.
Legal principles established
#- On an application under Rule 5(2)(b), the applicant must satisfy both the arguability limb and the nugatory limb; satisfying only one limb does not avail the applicant
- A single arguable point suffices to satisfy the arguability principle on a Rule 5(2)(b) application
- A court entertaining a Rule 5(2)(b) application must not make definitive or final findings of fact or law so as not to embarrass the hearing of the main appeal
- Sentimental attachment to a mortgaged property does not operate against the exercise of the mortgagee's statutory power of sale
- A court will not restrain a mortgagee from exercising its power of sale merely because the amount due is in dispute
Court orders
#- 1.The application for stay of execution is dismissed
- 2.Costs of the application awarded to the respondent
- On appeal from
- High Court of Kenya at Nairobi
- HCCC No. 1638 of 1999
- Jurisdiction invoked
- Section 3A(1)(2) of the Appellate Jurisdiction Act and Rules 5(2)(b), 41 and 47 of the Court of Appeal Rules; Sections 1A, 1B and 3A of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (4)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- JAMPEN ENTERPRISES LIMITED v LEAKEY’S AUCTIONEERS[2020] KEHC 5515 (KLR)8 May 2020applied
- Plaintiff/Applicant v 1st Defendant/Respondent & 2nd Defendant/Respondent (injunction application over KISUMU/NYALENDA 'B'/1674)[2018] KEHC 1767 (KLR)6 Dec 2018
- Anita Chelagat O’donovan & 2 others v Fredrick Kwame Kumah & 2 others [2017] KECA 202 (KLR)[2017] KECA 202 (KLR)10 Nov 2017followed
- Hezekia Kipkorir Maritim & 10 others v Philip Kipkoech Tenai & 2 others [2016] KEELC 673 (KLR)[2016] KEELC 673 (KLR)13 Jul 2016
Cite this brief
#Cite this brief
Caselaw, "Samson Mwathi Nyutu v Savings & Loan Kenya Limited [2015] KECA 460 (KLR)", Case Analysis (2015). Civil Application No. NAI 28 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/460/eng@2015-07-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.