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Court of AppealDismissedCivil Application No. NAI 140 of 2019· [2021] KECA 488 (KLR)

Banking, Accountancy & Computer Studies & 1 other v Housing Finance Company of Kenya Limited & 1 other

Court of Appeal of Kenya
4 June 2021
1,376 words in judgment
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The bottom line

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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

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Executive summary

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The applicants, husband and wife and registered proprietors of L.R. No. Thika Municipality/Block 9/715 in Thika town, obtained a loan of Ksh.16,000,000 from Housing Finance Company of Kenya Limited in 2013. They later asked Barclays Bank of Kenya Limited to take over the loan; an undertaking of Ksh.31,500,000 was given and the 1st respondent's charge was discharged and replaced by a charge in favour of the 2nd respondent. The applicants sued in HCCC No. 2 of 2018 at Kiambu, seeking injunctions, alleging the undertaking was unauthorised. Meoli, J. dismissed their Motion on 17th April 2019. The applicants then moved the Court of Appeal under rules 5(2)(b) and 42(1) of the Court of Appeal Rules for an injunction restraining the 2nd respondent from selling or interfering with the suit property pending the intended appeal, contending the appeal was arguable and would be rendered nugatory. Applying the settled two-limb test from Stanley Kinyanjui Kangethe v Tony Ketter, the Court held that a Letter of Variation dated 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, making it difficult to accept the complaint of unauthorised take-over. Discerning no arguable point, the Court found the applicants not entitled to an injunction, declined to consider the nugatory limb, and dismissed the Motion with costs. The ruling is a single judgment of the full bench; the interlocutory High Court ruling itself was not disturbed, the suit remaining pending at first instance.

Key legal issues

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Whether the applicants had an arguable intended appeal against the High Court's dismissal of their injunction application

Holding

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.

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 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

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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, "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.