Pamela Kawira Arunga v NCBA Bank Kenya PLC & 4 others [2021] KECA 387 (KLR)
The bottom line
#Kenya's Court of Appeal refused to stop the removal of a land restriction, ruling you cannot use a title restriction to achieve what a court already denied you.
What this practically means
#Executive summary
#Key legal issues
#Arguability of the intended appeal
The Court entertained doubts that the intended appeal was arguable: the property was admittedly charged to the Bank, the applicant's injunction application failed, and it was not open to her to have a restriction placed on the property instead.
The Court tested the applicant's grounds against the twin Rule 5(2)(b) principles. It found the facts undisputed: the charge existed, default occurred, and the injunction application was dismissed on 24th January 2019. Having failed in court, the applicant could not obtain via a restriction from the Land Registrar what she failed to obtain from the court. On those facts the Court was not persuaded the appeal was arguable.
Nugatory value of the intended appeal
The appeal would not be rendered nugatory absent a stay because the property had been sold and transferred, extinguishing the equity of redemption, and damages would be an adequate remedy if the sale was found irregular.
The Court held that the second limb of the Rule 5(2)(b) test was not satisfied. Since the property had been sold and transferred to the 2nd respondent, the equity of redemption was already extinguished. Even if the applicant's assertion of an irregular sale at gross undervalue were ultimately established, a remedy in damages would be available, so no stay was necessary to preserve the appeal's utility.
Legal principles established
#- An applicant under Rule 5(2)(b) must demonstrate that the intended appeal is arguable and that, if stay is declined and the appeal succeeds, it will be rendered nugatory
- Where a party fails to obtain an injunction restraining a chargee from exercising its statutory power of sale, it is not open to that party to circumvent the court's decision by procuring a restriction on the title
Court orders
#- 1.The application for stay is dismissed
- 2.Costs of the application awarded to the 1st respondent
- On appeal from
- Environment and Land Court at Nairobi
- ELC Case No. 4 of 2018
- 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, "Pamela Kawira Arunga v NCBA Bank Kenya PLC & 4 others [2021] KECA 387 (KLR)", Case Analysis (2021). Civil Application No. E032 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/387/eng@2021-07-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.