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Court of AppealDismissedCivil Application No. NAI 297 of 2018· [2019] KECA 496 (KLR)

Bimalroy Chhotalal Shah & another v I & M Bank Limited [2019] KECA 496 (KLR)

Court of Appeal
19 July 2019
2,268 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Court of Appeal refused to stop I & M Bank from selling a charged Nairobi property because the borrowers showed no real harm from a sale while the appeal was pending.

What this practically means

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Executive summary

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The applicants, Bimalroy Chhotalal Shah and Meera Shah, moved the Court of Appeal by Notice of Motion dated 11th January 2019 under rules 5(2)(b), 20(2), 42 and 47 of the Court of Appeal Rules, seeking an injunction restraining I & M Bank Limited from attaching, advertising for sale, auctioning or transferring LR No. 209/7501, their family home along Manyani Road, East Lavington, Nairobi, pending an intended appeal against a ruling of the High Court (Sewe, J). The applicants had charged the property to secure loan facilities of Kshs. 47,000,000 and Kshs. 196,000,000 for the development of six town houses. After financing difficulties, the bank issued statutory notices under sections 90 and 96 of the Land Act and scheduled a sale. Applying the two-pronged test for rule 5(2)(b) relief, the court found the intended appeal arguable: the complaint that the learned judge focused on calculation errors and ignored the alleged breach of the loan agreement was non-frivolous. However, the applicants failed the second limb: they did not demonstrate how the appeal would be rendered nugatory if the property were sold, and the bank, described as reputable, affirmed its capacity to pay damages. The application was accordingly dismissed with costs to the respondent. The decision does not disturb the High Court ruling; it declines interim relief only.

Key legal issues

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01

Whether the intended appeal is arguable

Holding

The intended appeal was arguable: the applicants' complaint that the judge focused on calculation errors and overlooked the alleged breach of the loan agreement was a non-frivolous ground fit for determination at the hearing of the appeal

Reasoning

Although no draft memorandum of appeal was located, paragraph 28 of the supporting affidavit disclosed a complaint that the High Court focused on calculation errors and failed to appreciate the respondent's alleged breach. The court held that an arguable ground need not succeed, only be non-frivolous, and a single arguable ground suffices. On this limb the applicants passed the threshold.

p. 3
02

Whether the intended appeal would be rendered nugatory if the injunction was not granted

Holding

The applicants failed to satisfy the nugatory limb: no demonstration was made of how the appeal would be rendered nugatory if the respondent exercised its statutory power of sale, and the respondent showed it could pay damages

Reasoning

Beyond the bare assertion of irreparable damage, the applicants did not demonstrate in what way the appeal would be rendered nugatory if the property were sold. The respondent, a reputable bank, indicated capacity to compensate the applicants in damages should the appeal succeed. Having failed the second conditionality, the application had to fail notwithstanding arguability.

p. 3

Legal principles established

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  • An application under rule 5(2)(b) is granted only if the applicant demonstrates both that the appeal is arguable and that it will be rendered nugatory absent the order; a single arguable ground suffices on the first limb
  • In dealing with rule 5(2)(b) applications, the Court of Appeal exercises original and discretionary jurisdiction, which is not an appeal from the judge's discretion

Court orders

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  1. 1.The motion dated 11th January 2019 fails and is dismissed
  2. 2.Costs of the application awarded to the respondent

Authorities

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Legislation

  • Court of Appeal RulesRule 5(2)(b)
  • Court of Appeal RulesRule 20(2)
  • Court of Appeal RulesRule 42
  • Court of Appeal RulesRule 47(1), (2) and (4)
  • Land ActSection 90
  • Land ActSection 96(1)

Cases cited (3)

  • Stanley Kang'ethe Kinyanjui vs Tony Keter & 5 Others
    Civil Application No. NAI. 31/2012
  • John Nduati Kariuki T/A Johester Merchants vs National Bank of Kenya Limited
    [2006] eKLR
  • Ruben & Others vs Nderitu & Another
    [1989] KLR 459
On appeal from
High Court of Kenya at Nairobi (Commercial and Tax Division)
Civil Suit No. 435 of 2017
Jurisdiction invoked
Rules 5(b), 20(2), 42 and 47(1), (2) and (4) of the Court of Appeal Rules (application for injunction pending an intended appeal under rule 5(2)(b))

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, "Bimalroy Chhotalal Shah & another v I & M Bank Limited [2019] KECA 496 (KLR)", Case Analysis (2019). Civil Application No. NAI 297 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/496/eng@2019-07-19

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