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Court of AppealDismissedCivil Application No. NAI. E055 of 2021

Samy Ghannam v SBM Bank Kenya Ltd & 2 others [2021] KECA 373 (KLR)

Court of Appeal
23 July 2021
1,022 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~4 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal refused to stop an auctioned property's sale because the borrower's intended appeal had no arguable point after he breached a prior consent order.

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 (Nambuye, Kiage and ole Kantai, JJA) on a single-judge-listed Motion dated 24th February 2021 brought by Sammy Ghannam under Rule 5(2)(b) of the Court of Appeal Rules. The applicant sought a temporary injunction restraining SBM Bank Kenya Ltd from dealing with L.R. No. 195/228, Unit No. 44, Karen Hills, sold at a public auction to the 2nd respondent, and a stay of the High Court ruling of 5th February 2021 (M. Odero, J.) which found his suit (H.C.C.C. No. E210 of 2020) res judicata and dismissed his injunction application, pending an intended appeal. The court restated the twin Rule 5(2)(b) principles, citing Stanley Kangethe Kinyanjui v Tony Ketter: the applicant must show an arguable appeal and that it would be rendered nugatory absent stay. On the facts, the applicant's earlier suit had been compromised by a consent order allowing the bank to exercise its statutory power of sale on default; the applicant defaulted and the property was auctioned on 19th May 2020. Finding no arguable point in the intended appeal, the court did not reach the second limb, dismissed the motion, and awarded costs to the 1st respondent. The High Court ruling itself was not before the court for affirmation or reversal; the application merely failed.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the intended appeal is arguable (not frivolous)
  2. 2.Whether the appeal would be rendered nugatory absent stay or injunction

Key legal issues

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01

Whether the intended appeal was arguable under Rule 5(2)(b)

Holding

The application fails because no arguable point was discerned in the intended appeal, given the applicant's breach of the consent order preceding the lawful exercise of statutory power of sale.

Reasoning

The applicant obtained a loan secured by the suit property; the suit over the chargee's statutory power of sale was compromised by a consent order permitting sale on default. The applicant defaulted, and the property was auctioned to the 2nd respondent on 19th May 2020. On those facts, the court found no arguable point in the intended appeal and, without reaching the nugatory-om limb, dismissed the motion with costs to the 1st respondent.

p. 2

Legal principles established

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  • An applicant under Rule 5(2)(b) must first show the appeal is arguable (not frivolous) and, in addition, that it would be rendered nugatory absent stay; failure on the first limb disposes of the application.

Court orders

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  1. 1.The Motion dated 24th February 2021 is dismissed
  2. 2.Costs of the application awarded to the 1st respondent

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
majority
On appeal from
High Court of Kenya at Nairobi
H.C.C.C. No. E210 of 2020
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules

Relief refused

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Temporary injunction restraining the 1st respondent from dealing with the suit property pending determination of the intended appeal

No arguable point discerned in the intended appeal

p. 2

Stay of execution and implementation of the High Court ruling of 5th February 2021 finding the suit res judicata

Having failed the first limb of the Rule 5(2)(b) test, the court did not reach the nugatory-om limb

p. 2

Costs

The Motion dated 24th February, 2021 has no merit and is dismissed with costs to the 1st respondent.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

For an applicant to succeed in an application brought under rule 5 (2) (b) of the rules of this Court he must, firstly, demonstrate that the appeal, or intended appeal, is arguable, which is the same as saying that it is not frivolous.
p. 1Rule 5(2)(b) twin principles
An applicant who succeeds on that first principle must, in addition, show that the appeal would be rendered nugatory absent stay
p. 1Nugatory-om limb
The Motion dated 24th February, 2021 has no merit and is dismissed with costs to the 1st respondent.
p. 2Disposition

Issues in the judgment

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minor

Internal inconsistency in the date of the public auction: the introductory passage refers to an auction on 19th May, 2000 while the remainder of the judgment consistently states 19th May, 2020.

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, "Samy Ghannam v SBM Bank Kenya Ltd & 2 others [2021] KECA 373 (KLR)", Case Analysis (2021). Civil Application No. NAI. E055 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/373/eng@2021-07-23

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