Juja Coffee Exporters Ltd & 2 others v Bank of Africa Ltd & 2 others [2019] KECA 837 (KLR)
The bottom line
#Kenya's Court of Appeal refused to stop a bank selling charged Mombasa plots, because the same injunction request had already been decided, and courts won't relitigate old fights.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the intended appeal is arguable
- 2.Whether, if not granted the injunction, the intended appeal would be rendered nugatory
Key legal issues
#Whether the intended appeal was arguable
The appeal was not arguable because the identical injunction application had already been heard and determined, and the Court of Appeal's judgment in Mombasa Civil Appeal No. 99 of 2016, which the Judge was bound by, made it inevitable that the preliminary objection would be upheld
The applicants had earlier sought identical injunction orders over the same properties, which the Judge allowed on 21st July 2016. That decision was appealed; the consolidated appeals were determined on 25th January 2018, with the Bank's appeal allowed and the injunction set aside. The Judge, bound by that precedent, was justified in upholding the res judicata objection. The applicants therefore failed the arguability limb.
Whether the appeal would be rendered nugatory absent an injunction
The Court declined to consider the nugatory limb since the applicants had already failed on arguability
Both limbs must be satisfied. Having found no arguable appeal, the Court held that any finding on the nugatory-ness limb would not alter the outcome, and expressly declined to venture into it, consistent with settled Rule 5(2)(b) practice.
Legal principles established
#- An applicant under Rule 5(2)(b) must satisfy the Court on both limbs - arguability of the appeal and that the appeal would be rendered nugatory; failure on one limb is fatal
- An arguable appeal is not one that must necessarily succeed but one that is not trifling and raises at least one bona fide point worthy of decision
- Wider principles of res judicata apply to interlocutory applications within a suit; there must be an end to applications of a similar nature
- High Court judges are bound by decisions of the Court of Appeal under the doctrine of precedent
Court orders
#- 1.The application dated 11th April 2018 is dismissed with costs to the 1st respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Mombasa
- HCCC No. 57 of 2016
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules (application for injunction pending appeal)
Relief refused
#Temporary injunction pending appeal restraining the Bank from advertising for sale, selling by public auction or private treaty, leasing or otherwise disposing of the named plots
The applicants failed to demonstrate an arguable appeal; a previous identical injunction application had been heard and determined, and this Court's decision in Mombasa Civil Appeal No. 99 of 2016 bound the learned Judge
Costs
The application is dismissed with costs (to the Bank, the 1st respondent)
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The principles upon which this Court grants relief under Rule 5(2)(b) of its Rules are well settled and they are that to succeed, an applicant must show that he has an arguable appeal and that if the orders sought, be they of stay of execution or injunction are not granted, the said appeal would be rendered nugatory or useless, illusory, academic and of no effect.
wider principles of res judicata apply to applications within the suit... There must be an end to interlocutory applications as much as there ought to be an end to litigation.
She was bound by the decision of this Court by the doctrine of precedent.
In the result, the application is entirely without merit and is dismissed with costs.
Issues in the judgment
#The judgment states the applicants' appeal against the 21st July 2016 ruling was filed as Mombasa Civil Appeal No. 109 of 2016, but later refers to the consolidated judgment as dismissing 'the one by the applicants herein, No. 106 of 2016' - an apparent typographical inconsistency in the appeal number
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Juja Coffee Exporters Ltd & 2 others v Bank of Africa Ltd & 2 others [2019] KECA 837 (KLR)", Case Analysis (2019). Civil Application No. 48 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/837/eng@2019-03-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.