Gilgil Distributors Limited & 2 others v Kenya Breweries Limited & 2 others [2016] KECA 728 (KLR)
The bottom line
#Kenya's Court of Appeal stopped Barclays from selling Gilgil Distributors' properties pending appeal, because a sale would make the appeal pointless.
What this practically means
#Executive summary
#Key legal issues
#Whether the intended appeal is arguable
The intended appeal is arguable: whether the 3rd respondent lawfully paid out the guarantee and whether it was entitled to levy interest and issue statutory notices on the basis of that payment are major arguable issues
The Court reminded itself that an arguable appeal need not succeed but must raise issues fit for argument. It identified two bona fide grounds: whether the 3rd respondent acted lawfully in paying out the guarantee said not to secure the empty-bottles transactions, and whether it could levy interest and issue statutory notices for sale premised on that payment causing the account default.
Whether the appeal would be rendered nugatory if the injunction is not granted
The balance tilts in favour of the applicants because unless the injunction is granted the suit properties, the substratum of the intended appeal, will be sold, rendering the appeal nugatory
The Court weighed the competing claims: the applicants asserted the statutory notice rests on a fraudulent presentment and payment of the guarantee and that sale would cost them their homes and livelihoods; the 3rd respondent asserted a right of statutory sale over a defaulted account. Weighing these, sale of the substratum of the appeal before its hearing would render the appeal nugatory.
Legal principles established
#- An applicant under Rule 5(2)(b) must establish both an arguable appeal and that the appeal would be rendered nugatory absent the orders sought
- In considering whether an intended appeal is arguable, it is sufficient if a single bona fide arguable ground is raised; an arguable appeal is not one that must necessarily succeed
- Rule 5(2)(b) jurisdiction is original and discretionary, exercised as a court of first instance
Court orders
#- 1.The application dated 11th June, 2015 is allowed in terms of prayer (c) thereof
- 2.The costs of the application shall abide the outcome of the appeal
- On appeal from
- High Court of Kenya at Milimani, Nairobi
- H.C.C.C. No. 451 of 2013
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Gilgil Distributors Limited & 2 others v Kenya Breweries Limited & 2 others [2016] KECA 728 (KLR)", Case Analysis (2016). Civil Application No. NAI 158 of 2015 (UR 128/15). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/728/eng@2016-03-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.