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Case Brief · caselaw.co.ke
Court of AppealDismissedCivil Application No. NYR 82 of 2020· [2021] KECA 820 (KLR)

John King’ori Kioni v Sidian Bank & 1 other

Court of Appeal
19 March 2021
1,037 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Court of Appeal refused to stop Sidian Bank from selling a borrower's land, holding that money can fix most wrongs — so no injunction.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal (Koome, M'inoti and Murgor, JJ.A.) on an application for an injunction pending appeal under rule 5(2)(b) of the Court of Appeal Rules. The applicant, John King'ori Kioni, obtained an asset finance loan of Kshs 6,400,000 from Sidian Bank in March 2013, secured inter alia by a charge over land. After default, the bank moved to realise the security. The applicant's injunction application was dismissed in the Chief Magistrate's Court and again on appeal by the High Court at Nyahururu (Wendoh, J.) on 28 May 2020, which held that the interest-rate capping legislation did not apply retrospectively and that a dispute over the amount payable was not per se a ground to restrain a chargee. Before the Court of Appeal, the applicant contended the interest charged was illegal, that goods on the repossessed lorry went to waste, and that the securities were undervalued, relying on authority that a chargee owes a duty of care to a chargor. The bank opposed, arguing the appeal was not arguable and that it could compensate the applicant in damages. The Court found the intended appeal arguable but held the applicant had failed to demonstrate the appeal would be rendered nugatory, since the dispute was quantifiable in money and no inability to compensate was shown. The application was dismissed with costs to the bank. The decision binds subordinate courts on the twin-test formulation for rule 5(2)(b) relief.

Key legal issues

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01

Whether the intended appeal was arguable

Holding

Yes - the Court was prepared to find the intended appeal arguable, satisfying the first limb of rule 5(2)(b).

Reasoning

The Court applied the settled test that an arguable appeal need only raise one bona fide issue deserving full consideration; it need not raise a multiplicity of issues nor succeed at the hearing. On that standard, the applicant's contention regarding illegality of the interest charged sufficed to make the appeal arguable, though this alone did not secure the relief sought.

p. 2
02

Whether the appeal would be rendered nugatory absent the injunction

Holding

No - the applicant failed the nugatory limb, so the application failed.

Reasoning

The Court held that nugatory-ness means success would be futile, worthless or pyrrhic because intervening events cannot be reversed or compensated by damages. Here the dispute was quantifiable in money to the last cent, and the applicant neither alleged nor proved on a balance of probabilities that the bank would be unable to compensate him if the appeal succeeded without the injunction.

p. 2

Legal principles established

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  • To obtain relief under rule 5(2)(b) of the Court of Appeal Rules, an applicant must satisfy both the arguability and the nugatory-ness limbs; satisfying only one is insufficient.
  • An arguable appeal need not raise a multiplicity of issues or succeed; one bona fide issue deserving full consideration suffices.
  • An appeal is rendered nugatory where its success would be futile or a mere pyrrhic victory because the intervening events cannot be reversed or adequately compensated by damages.
  • A mere dispute over the amount payable under a loan is not per se a basis for restraining a chargee from realising its security.
  • The Banking (Amendment) Act, 2016 capping interest rates does not apply retrospectively; parties remain bound by the terms of their contract.

Court orders

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  1. 1.The application for an injunction pending appeal is dismissed
  2. 2.Costs of the application awarded to the 1st respondent (Sidian Bank)
On appeal from
High Court of Kenya at Nyahururu
HCA No. 22 of 2017
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, "John King’ori Kioni v Sidian Bank & 1 other", Case Analysis (2021). Civil Application No. NYR 82 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/820/eng@2021-03-19

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