Banking, Accountancy & Computer Studies & 1 other v Housing Finance Company of Kenya Limited & 1 other
The bottom line
#Kenya's Court of Appeal refused to block a bank from selling Thika property because the borrowers' own signed letter showed they had agreed to the loan takeover.
What this practically means
#Executive summary
#Key legal issues
#Whether the applicants had an arguable intended appeal against the High Court's dismissal of their injunction application
The Court found no arguable point: the Letter of Variation of 15th February 2017, signed by the borrower, varied the facility to Ksh.46,500,000 including a debt take-over of Ksh.31,500,000, undermining the complaint of unauthorised take-over.
The Court reviewed the applicants' claim that the 2nd respondent's undertaking of Ksh.31,500,000 was unauthorised and a nullity. It noted the Letter of Variation – Term Loan dated 15th February 2017, signed by the borrower and its schedule, which expressly recorded a debt take-over of Ksh.31,500,000. It also observed that once the applicants themselves approached the 2nd respondent to take over the loan, this would ordinarily be done by exchange of the loan book between the banks. It declined to say more to avoid embarrassing the trial court. Finding no arguable point, it dismissed the application without considering the nugatory limb.
Legal principles established
#- An applicant under rule 5(2)(b) must first demonstrate that the appeal or intended appeal is arguable (not frivolous) and, in addition, show that the appeal would be rendered nugatory absent stay; failing the first limb, the second need not be considered.
Court orders
#- 1.The Motion under rule 5(2)(b) of the Court of Appeal Rules seeking an injunction pending appeal was dismissed with costs
- On appeal from
- High Court of Kenya at Kiambu
- H.C.C.C. No. 2 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, "Banking, Accountancy & Computer Studies & 1 other v Housing Finance Company of Kenya Limited & 1 other", Case Analysis (2021). Civil Application No. NAI 140 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/488/eng@2021-06-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.