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Court of AppealDismissedCivil Application No. E 373 of 2020· [2021] KECA 419 (KLR)

Aquinas F. M. Wasike v Absa Bank PLC (Formerly Barclays Bank of Kenya Limited), Regent Auctioneers & Titus O. Koceyo [2021] KECA 419 (KLR)

Court of Appeal
9 July 2021
HOHannah OkwenguFSF. SichaleJMJ. Mohammed
1,511 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to stop a completed property sale, ruling that an injunction cannot undo what has already happened.

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 (Okwengu, Sichale and J. Mohammed, JJ.A) on a Notice of Motion dated 26th November 2020 in which Aquinas F. M. Wasike sought an injunction pending the lodging, hearing and determination of an intended appeal against the ruling of the High Court at Nairobi (Majanja, J.) delivered on 15th September 2020 in HCCC No. E 310 of 2020, which had dismissed his application for an interlocutory injunction restraining the sale and transfer of an apartment on LR. No. 2/696 (Part) IR 119440, Kirichwa Heights, Kilimani. The applicant argued that the statutory power of sale had not crystallised, that no valid statutory notice under Section 90(2) of the Land Act had been served, and that there was collusion among the respondents, rendering the auction invalid. The 3rd respondent swore that he was the successful bidder at Kshs 13,500,000/=, had paid the full price, obtained transfer and taken possession. The court applied the settled twin principles for Rule 5(2)(b) applications: arguability and nugatory-ness, both of which must be demonstrated. The court found that the property had already been sold and transferred, that an injunction cannot remedy what has already taken place, and that the motion was overtaken by events. The motion was dismissed with costs to the respondents. No separate opinions were expressed; the ruling is a single judgment of the full bench.

Key legal issues

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01

Twin principles for injunction pending appeal

Holding

An applicant must demonstrate both that the appeal is arguable and that it would be rendered nugatory if orders are not granted; both limbs must be satisfied.

Reasoning

The court restated the settled test under Rule 5(2)(b): the applicant bears the burden of showing a non-frivolous, arguable appeal and that the intended appeal's success would be rendered nugatory if the orders sought are denied. Demonstrating only one limb does not avail the applicant.

p. 2
02

Nugatory test and reversibility

Holding

In assessing whether an appeal would be rendered nugatory, the court considers whether what is sought to be stayed is reversible, or if not, whether damages would reasonably compensate the aggrieved party.

Reasoning

The court adopted prior authority giving 'nugatory' its full meaning of worthless, futile, invalid or trifling, and framed the enquiry around reversibility of the situation or adequacy of damages as compensation where the state of affairs cannot be undone.

p. 2
03

Application overtaken by events

Holding

Where the suit property has already been sold at auction and transferred, an injunction is of no effect and the motion is bereft of merit.

Reasoning

The court found as a fact that the property was sold by the 1st respondent and transferred. Since an injunction cannot remedy what has already taken place, there was nothing to stay; the motion was dismissed. The court noted the valuation dispute between the applicant and the 1st respondent was said to be remediable in damages rather than by injunction.

p. 3

Legal principles established

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  • An applicant for an injunction or stay pending appeal must satisfy both limbs - an arguable appeal and that the appeal would be rendered nugatory - satisfying only one limb is insufficient.
  • An injunction cannot remedy a completed act; where the property has already been sold and transferred, the application is overtaken by events.

Court orders

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  1. 1.The Notice of Motion dated 26th November 2020 is dismissed with costs to the Respondents

Authorities

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Legislation

  • Court of Appeal RulesRule 5(2)(b)
  • Appellate Jurisdiction Act, CAP 9Section 3A
  • Appellate Jurisdiction Act, CAP 9Section 3B
  • Land Act No. 6 of 2012Section 90(2)

Cases cited (4)

  • Republic v Kenya Anti-Corruption Commission & 2 others
  • Hashmukhlal Virchand Shah & 2 others v Investment & Mortgages Bank Limited
    [2014] eKLR
  • George Otieno Gache & another v Judith Akinyi Bonyo & 5 others
    [2017] eKLR
  • Reliance Bank Ltd v Nor-Lake Investment Ltd
    [2002] IEA 227
On appeal from
High Court of Kenya at Nairobi
HCCC No. E 310 of 2020
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules and Sections 3A and 3B of the Appellate Jurisdiction Act, CAP 9

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Aquinas F. M. Wasike v Absa Bank PLC (Formerly Barclays Bank of Kenya Limited), Regent Auctioneers & Titus O. Koceyo [2021] KECA 419 (KLR)", Case Analysis (2021). Civil Application No. E 373 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/419/eng@2021-07-09

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