Mary Atieno Nyamogo v Barclays Bank of Kenya Ltd [2017] KECA 169 (KLR)
The bottom line
#Kenya's Court of Appeal stopped Barclays Bank from selling a Kisumu home because unexplained charges made the homeowner's appeal worth hearing.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the intended appeal is arguable and not frivolous
- 2.Whether the appeal would be rendered nugatory unless an injunction is granted pending the hearing of the appeal
Key legal issues
#Whether the intended appeal was arguable
The ground that the court below misapprehended the facts regarding unascertained amounts claimed by the bank was arguable and not frivolous.
The applicant complained that the court below found she owed sums, including Kshs. 918,030.51 in debt collection charges, which were neither pleaded nor proved and which she did not know the composition of. On the basis of this complaint that the lower court misapprehended the facts regarding the unascertained amounts, the court considered the ground arguable rather than frivolous, which is the threshold at this interlocutory stage.
Whether the appeal would be rendered nugatory if the suit property were sold
The appeal would be rendered nugatory if the suit property, the applicant's matrimonial home, were sold, since she would lose both the property and sums already paid; and the Kshs. 300,000 deposit in court adequately safeguarded the respondent's interests.
An impending sale of the suit property over disputed sums meant that if the applicant's claim to have repaid the loan were vindicated on appeal, she would have lost both the property and the sums paid; and if the debt collection charges were found unfounded, she would have lost the property on fictitious claims. The prior deposit of Kshs. 300,000 as security meant the respondent's interests were adequately protected, tipping the balance in favour of the injunction.
Legal principles established
#- An applicant under rule 5(2)(b) must satisfy the twin tests of an arguable appeal and that the appeal will be rendered nugatory if the injunction or stay is not granted.
- The rule 5(2)(b) jurisdiction is original and discretionary and must be exercised on the basis of sound principles.
Court orders
#- 1.Order of injunction granted against execution of the judgment of the High Court of 26th October 2016 in terms of prayer number 2 in the Notice of Motion lodged on 3rd November 2016
- 2.Costs to be in the intended appeal
- 3.Applicant ordered to file her record of appeal within 45 days from the date of the ruling
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Kisumu (Environment and Land Court)
- Kisumu ELC Case No. 798 of 2015
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules (injunction pending appeal)
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Two main principles guide the court in its exercise of that discretion, namely for the applicant to succeed, he must not only show he has an arguable appeal or that his intended appeal is not frivolous but also that unless granted an injunction, stay of decree or further proceedings, as the case may be, his appeal or intended appeal, if successful will be rendered nugatory.
In our view, on the basis of the complaint that the court below misapprehended the facts regarding the unascertained amounts, we consider this ground to be an arguable, and not frivolous.
In view of the existence of this security, we consider that adequate provision has been made to safeguard the respondent's interests.
Accordingly, we grant the order of injunction against execution of the judgment of the High Court of 26 th October 2016 in terms of prayer number 2 in the Notice of Motion lodged on 3 rd November 2016, and that costs be in the intended appeal.
Issues in the judgment
#The judgment states two slightly different figures for the outstanding loan balance (Kshs. 361,456.55 in the applicant's account and Kshs. 361,458.55 in the respondent's affidavit), a discrepancy in the record.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mary Atieno Nyamogo v Barclays Bank of Kenya Ltd [2017] KECA 169 (KLR)", Case Analysis (2017). Civil Application No. 90 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/169/eng@2017-07-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.