Bimalroy Chhotalal Shah & another v I & M Bank Limited [2019] KECA 496 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the intended appeal is arguable
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
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.
Whether the intended appeal would be rendered nugatory if the injunction was not granted
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
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.
Legal principles established
#- 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
#- 1.The motion dated 11th January 2019 fails and is dismissed
- 2.Costs of the application awarded to the respondent
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.