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Court of AppealPartially AllowedCivil Application No. 333 of 2018 (UR 270/2018)· [2019] KECA 605 (KLR)

Amina Hersi Moghe& 5 others v Diamond Trust Bank (K) Limited & another [2019] KECA 605 (KLR)

Court of Appeal
21 June 2019
2,419 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal stopped the sale of charged properties because the bank couldn't prove it served proper statutory notices, but the protection lasts only 60 days unless the appeal is filed.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Nairobi (Koome, Murgor and ole Kantai, JJA) delivered on 21st June 2019 in two consolidated applications under Rule 5(2)(b) of the Court of Appeal Rules, seeking injunctions pending the hearing and determination of intended appeals against a ruling of the High Court (Francis Tuiyott, J.) dated 15th August 2018 in H.C.C.C. No. 176 of 2018. The applicants, chargors facing advertising and sale of their properties by Diamond Trust Bank and Dalali Traders Auctioneers, contended that the statutory notices required under Sections 90 and 96 of the Land Act and the Auctioneers Act had not been properly served, and that the demanded amounts were inflated and inconsistent across notices. The bank opposed, arguing the appeals were not arguable, the applicants lacked locus standi, and the intended appeals had lapsed. The court applied the settled twin principles from Stanley Kangethe Kinyanjui v Tonny Keter: arguability and nugatory-impact. It found that the question whether proper statutory notices had been served was a valid arguable point, and that a sale without compliance with the law would put the properties beyond the applicants' reach, rendering the intended appeals nugatory. The court allowed both motions, granted prayers (a) and (b) restraining interference with the suit properties, directed that the intended appeals be filed within 60 days failing which the stay orders would lapse, and ordered that costs of the applications abide the appeals.

Key legal issues

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01

Whether the applicants had raised an arguable appeal

Holding

Yes - the question whether proper statutory notices under the Land Act and the Auctioneers Act had been served was a valid arguable point, and the applicants were entitled to proper notices whose absence would deny them the right of redemption.

Reasoning

The court examined the High Court ruling and observed that the learned Judge found evidence that notices under Sections 90 and 96 of the Land Act had been served, but the court itself found no clear evidence on record that the required notices had been served as required by law. Chargors are entitled to proper service to protect their equity of redemption. The dispute over service of notices was therefore sufficient to meet the arguability threshold without making definitive findings of fact or law.

p. 3
02

Whether the intended appeal would be rendered nugatory if the properties were sold

Holding

Yes - if the properties were sold without compliance with the law, they would be beyond the applicants' reach, rendering the intended appeal nugatory.

Reasoning

On the second limb, the court reasoned that a forced sale of the charged properties before determination of the appeal would be irreversible; the applicants would lose their properties and could not be adequately compensated, so the appeal would be rendered nugatory. Both limbs of the Rule 5(2)(b) test were satisfied and stay was granted conditional on filing the intended appeal within 60 days.

p. 4

Legal principles established

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  • An applicant under Rule 5(2)(b) must satisfy the twin principles of an arguable appeal and that the appeal will be rendered nugatory if stay is not granted.
  • Chargors are entitled to proper statutory notices before exercise of the chargee's statutory power of sale; failure to serve such notices is an arguable point and sale without compliance would render an appeal nugatory.

Court orders

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  1. 1.Grant of prayers (a) and (b) of the consolidated notices of motion, restraining the respondents from attaching, transferring, alienating, advertising, selling or interfering with the suit properties pending the hearing and determination of the intended appeal
  2. 2.The intended appeal or appeals be filed within 60 days of the date of the ruling, in default of which the orders of stay lapse without further orders
  3. 3.Costs of the applications to abide the said appeal or appeals

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 159
  • Court of Appeal RulesRule 5(2)(b)
  • Court of Appeal RulesRule 75
  • The Land ActSections 90 and 96
  • The Auctioneers Actnot specified (notices under the Act; Auctioneers' Rules)

Cases cited (8)

  • Stanley Kangethe Kinyanjui versus Tonny Keter & 5 others
    [2013] eKLR
  • Ruben & 9 others V. Nderitu & Another
    [1989] KLR 459
  • Halai & Another V. Thornton & Turpin [1963] Ltd
    [1990] KLR 365
  • David Morton Silverstein V. Atsango Chesoni
    Civil Application No. Nai 189 of 2001
  • Damji Pragji Mandavia V. Sara Lee Household & Body Care (K) Ltd
    Civil Application No. Nai 345 of 2004
  • Joseph Gitahi Gachau & Another V. Pioneer Holdings (A) Ltd. & 2 others
    Civil Application No. 124 of 2008
  • Reliance Bank Ltd V. Norlake Investments Ltd
    [2002] 1EA 227
  • International Laboratory for Research on Animal Diseases V. Kinyua
    [1990] KLR 403
On appeal from
High Court of Kenya at Nairobi
H.C.C.C. No. 176 of 2018
Jurisdiction invoked
Article 159 of the Constitution of Kenya, 2010 and 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, "Amina Hersi Moghe& 5 others v Diamond Trust Bank (K) Limited & another [2019] KECA 605 (KLR)", Case Analysis (2019). Civil Application No. 333 of 2018 (UR 270/2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/605/eng@2019-06-21

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