Equip Agencies Limited & another v I & M Investment Bank & 2 others [2020] KECA 687 (KLR)
The bottom line
#Kenya's Court of Appeal refused to stop the sale of charged land because the property's known value and available damages made blocking the sale unnecessary.
What this practically means
#Executive summary
#Key legal issues
#Whether the intended appeal is arguable
The intended appeal was found to be arguable, as an arguable appeal need not necessarily succeed but need only be deserving of the Court's consideration.
Counsel for the applicants complained that the learned Judge erred in ignoring the provisions of Order 11 Rule 3(2)(g) of the Civil Procedure Rules in refusing interlocutory relief, and in holding that the application was a disguised attempt to obtain orders previously denied. Relying on Dennis Mogambi Mong'are vs. Attorney General & others, the Court held an arguable appeal is simply one deserving of the Court's consideration, and was satisfied the intended appeal met that threshold.
Whether the intended appeal would be rendered nugatory unless the injunction was granted
The nugatory limb failed: the value of the suit property is known in precise monetary terms, the 1st respondent has given an undertaking to compensate, and damages are available under Section 99(4) of the Land Act.
The Court aligned itself with its earlier ruling in Civil Appeal (Application) No. 412 of 2019 between the same parties, where it found the nugatory test not satisfied because the value of the property was known and the 1st respondent had undertaken to compensate. It further noted that Section 99(4) of the Land Act affords a remedy in damages for an unauthorised, improper or irregular exercise of the power of sale, so refusing the injunction would not render the appeal nugatory.
Legal principles established
#- An applicant under Rule 5(2)(b) must demonstrate both that the appeal is arguable and that it will be rendered nugatory if the orders sought are not granted.
Court orders
#- 1.The application is dismissed with costs to the respondents
- On appeal from
- High Court of Kenya at Nairobi
- Nairobi HCCC No. 417 of 2018 (Formerly Naivasha HCCC No. 9 of 2016)
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Equip Agencies Limited & another v I & M Investment Bank & 2 others [2020] KECA 687 (KLR)", Case Analysis (2020). Civil Application No. 31 of 2019 (UR 37/2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/687/eng@2020-05-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.