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Court of AppealDismissedCivil Application No. 32 of 2020· [2020] KECA 245 (KLR)

Catherine Wambui Kuria (Suing as the Personal Representative of the estate of Peter Kuria Munyuira v Housing Finance Company of Kenya Limited & another [2020] KECA 245 (KLR)

Court of Appeal
23 October 2020
1,469 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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The Court of Appeal refused to stop an eviction because the applicant could be compensated with money, showing that arguable appeals alone do not win emergency relief in Kenya.

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 on a motion under Rule 5(2)(b) of the Court of Appeal Rules seeking an injunction pending the hearing and determination of an intended appeal from the judgment of the High Court (Majanja, J.) of 30th January 2020 in HCCC No. 457 of 2006, which dismissed the applicant's claim challenging the sale by public auction and transfer of L.R. No. Dagoretti/Riruta/S.296 to the 2nd respondent. The dispute concerned a mortgage taken out in 1998 to secure a loan of Kshs. 1,520,000, the alleged absence or service of a statutory notice, and a claimed fraudulent auction. The applicant argued that the intended appeal was arguable on the statutory notice and auction issues, and that she would be evicted and the property sold, rendering the appeal nugatory. The 2nd respondent opposed, noting the applicant's 14 years of occupation and collection of rent of Kshs. 150,000 per month, her status as a bona fide purchaser for value, and the absence of fraud. Applying the settled twin principles - arguability and nugatory-ness - the court found the appeal arguable but held that damages would be an adequate remedy, so the second limb failed. The application was dismissed with costs. No decision of the High Court was disturbed at this stage; the intended appeal remains to be heard.

Key legal issues

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01

The principles governing an application for an injunction pending appeal under Rule 5(2)(b)

Holding

The burden is on the applicant to show an arguable appeal without proving it will necessarily succeed, and further to prove that unless a stay or injunction is granted the intended appeal would be rendered nugatory.

Reasoning

The court restated the settled twin principles under Rule 5(2)(b). It accepted that the draft memorandum of appeal raised arguable issues on the service of the statutory notice and the auction. However, on the nugatory limb, the applicant had continued in occupation and collecting rent, and any prejudice could be compensated by damages, so the appeal would not be rendered nugatory.

p. 2
02

Whether the intended appeal would be rendered nugatory absent an injunction

Holding

The intended appeal would not be rendered nugatory because an award of damages would adequately compensate the applicant.

Reasoning

The court weighed the applicant's claim of likely eviction against the 2nd respondent's position as a bona fide purchaser for value who had been hindered from taking possession for 14 years while the applicant collected rent of Kshs. 150,000 per month. Finding damages an adequate remedy, the second limb failed and the application had to be dismissed.

p. 2

Legal principles established

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  • Under Rule 5(2)(b), an applicant must satisfy both limbs: an arguable appeal (without showing it must succeed) and that the appeal would be rendered nugatory absent the orders; failure on either limb is fatal

Court orders

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  1. 1.The application for an injunction pending the hearing and determination of the intended appeal is dismissed with costs

Authorities

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Legislation

  • Court of Appeal RulesRule 5(2)(b)

Cases cited (2)

  • Stanley Kangethe Kinyanjui vs. Tony Ketter & Others
    ([2103]) eKLR
  • Republic vs. Kenya Anti-Corruption Commission & 2 others
    ([2009]) KLR 31
On appeal from
High Court
HCCC No. 457 of 2006
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules (injunction/stay pending appeal)

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, "Catherine Wambui Kuria (Suing as the Personal Representative of the estate of Peter Kuria Munyuira v Housing Finance Company of Kenya Limited & another [2020] KECA 245 (KLR)", Case Analysis (2020). Civil Application No. 32 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/245/eng@2020-10-23

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