Amina Hersi Moghe& 5 others v Diamond Trust Bank (K) Limited & another [2019] KECA 605 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the applicants had raised an arguable appeal
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.
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.
Whether the intended appeal would be rendered nugatory if the properties were sold
Yes - if the properties were sold without compliance with the law, they would be beyond the applicants' reach, rendering the intended appeal nugatory.
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.
Legal principles established
#- 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
#- 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.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.Costs of the applications to abide the said appeal or appeals
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.