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Court of AppealPartially AllowedCivil Application No. 7 of 2017 (UR No. 6/017)· [2017] KECA 553 (KLR)

Equip Agencies Limited v I & M Bank Limited [2017] KECA 553 (KLR)

Court of Appeal of Kenya
10 May 2017
1,334 words in judgment
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The bottom line

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Kenya's Court of Appeal stopped I & M Bank from selling charged land because a key question—whether all the debts were actually secured on it—deserves a full hearing.

What this practically means

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Executive summary

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Equip Agencies Limited borrowed Kshs 324,000,000 from I & M Bank in 2011, secured on L.R. No. Gilgil/Township Block 2/210, and alleged the loan was fully amortised by March 2015. The Bank thereafter issued a statutory notice demanding payment of combined debts across two accounts, contending that the accounts had been restructured and consolidated and were secured by the charge. Equip Agencies sued, seeking an injunction to stop the sale of the suit property; Meoli, J. dismissed the injunction application on 9th December 2016. The applicant filed a substantive appeal (Civil Appeal No. 2 of 2017) and the present Notice of Motion under Rule 5(2)(b) of the Court of Appeal Rules seeking an injunction pending appeal. Applying the twin principle, the Court found the question whether both loans were secured by the charge arguable, noting that a dispute on quantum alone would not stop a sale but that the security question was a genuine issue for the appeal Bench. It further found that if the property were sold, the sale might be irreversible, rendering a successful appeal nugatory. The Court allowed the application, granted an injunction in terms of prayer 2 of the Motion, directed urgent case management and hearing of the appeal, and ordered the costs of the application to abide the outcome of the appeal.

Key legal issues

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01

Arguability of the intended appeal

Holding

The question whether both loans were secured by the charge over the suit property is an arguable point satisfying the first limb of the Rule 5(2)(b) twin principle

Reasoning

The applicant admitted borrowing but disputed that the restructured/consolidated debts fell within the charge security. The Court held that while a quantum dispute alone cannot stop a sale, whether both loans were secured by the charge is a bona fide issue for the appeal Bench. A single arguable point suffices; the point was neither frivolous nor a non-starter.

p. 2
02

Nugatory value of the appeal

Holding

If the suit property were sold pending appeal, the sale would likely be irreversible, rendering a successful appeal nugatory

Reasoning

The application concerned landed property. If the debt was not secured on it, the respondent could not lawfully sell it; a sale would extinguish the subject matter of the appeal since it may not afterwards be reversible. That satisfies the second limb of the twin principle and justified an injunction.

p. 2

Legal principles established

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  • An applicant under Rule 5(2)(b) need only establish one arguable point; a multiplicity is not required
  • A dispute as to the quantum of a debt does not, by itself, justify stopping the sale of charged property
  • A charged property cannot lawfully be sold where the debt sought to be realised is not secured on it, regardless of the size of the debt

Court orders

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  1. 1.An injunction order in terms of prayer 2 of the Notice of Motion restraining the respondent from selling the suit property
  2. 2.Direction that the appeal be set down urgently for case management and fixed for hearing that term
  3. 3.Costs of the application to abide the outcome of the appeal

Authorities

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Legislation

  • The Court of Appeal RulesRule 5(2)(b)
On appeal from
High Court of Kenya at Naivasha
H. C. Civil Suit No. 9 of 2016 (originally H.C.C.C. No. 82 of 2016, Nakuru)
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules

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, "Equip Agencies Limited v I & M Bank Limited [2017] KECA 553 (KLR)", Case Analysis (2017). Civil Application No. 7 of 2017 (UR No. 6/017). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/553/eng@2017-05-10

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