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Court of AppealDismissedCivil Application E447 of 2021· [2022] KECA 791 (KLR)

Munanu v Equity Bank (K) Limited

Court of Appeal
24 June 2022
DMD K MusingaMAM S ASIKE-MAKHANDIAKMK M'INOTI
1,323 words in judgment
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The bottom line

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The Court of Appeal dismissed a bid to stop a bank selling a family home because the appeal notice was filed late, confirming strict deadlines apply in Kenya.

What this practically means

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Executive summary

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The applicant, a former employee of Equity Bank, had been granted a staff mortgage of Kshs.5,300,000 at 8% interest; after termination of his services the interest rate rose to the commercial 13% and, on his default, the bank issued a redemption notice over the mortgaged property (L.R No. Ruiru/Ruiru East Block 2/5859). He sued in the ELRC and obtained ex-parte injunctive orders on 3rd February 2020 restraining sale of the property. Rika, J. set aside those interim orders by a ruling delivered on 9th November 2021, holding that such orders could not be extended except by consent under rule 17 of the ELRC Procedure Rules, 2016. The applicant filed a notice of appeal on 30th November 2021 and moved the Court of Appeal under rule 5(2)(b) for stay of that ruling pending an intended appeal. The respondent objected that the notice of appeal, filed seven days outside the fourteen-day period under rule 75(2), was incompetent. Counsel for the applicant conceded the late filing, explaining that he had not received the court's email transmitting the ruling early. The Court (Musinga, P; Asiike-Makhandia and M'inoti, JJA) held that its stay jurisdiction arises only upon a notice of appeal lodged in accordance with rule 75, and that the proper course for the applicant was to apply for extension of time. The application was therefore dismissed for want of jurisdiction. In the alternative, the Court found the intended appeal not arguable and held that damages, not preservation of the property, would be the applicant's remedy, sentimental attachment to the family home being irrelevant. The applicant was ordered to bear the costs of the application.

Key legal issues

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01

Jurisdiction premised on a competent notice of appeal

Holding

The application was incompetent because the notice of appeal was filed out of the fourteen days prescribed by rule 75(2) without leave, depriving the Court of jurisdiction to grant stay under rule 5(2)(b).

Reasoning

The Court's stay jurisdiction arises only upon a notice of appeal lodged in accordance with rule 75. The notice was filed on 30th November 2021, seven days after the expiry of the fourteen-day period running from the 9th November 2021 ruling. Counsel conceded this. The claim that the emailed ruling was not received required an extension-of-time application, which was never made.

p. 2
02

Arguability and nugatory-ness in the alternative

Holding

Even assuming jurisdiction, the intended appeal was not arguable and would not be rendered nugatory, since damages would adequately compensate the applicant if the suit property were sold.

Reasoning

The interim preservation orders did not match the prayers in the claim, which sought compensation for unfair dismissal. The applicant did not allege the respondent could not pay damages; he relied only on sentimental attachment to the property, which the Court held irrelevant, adopting the John Nduati Kariuki principle that a borrower who offered securities cannot claim they are unique.

p. 3

Legal principles established

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  • The Court of Appeal's jurisdiction to grant stay of execution, injunction or stay of proceedings arises only where a notice of appeal has been lodged in accordance with rule 75 of the Court of Appeal Rules.
  • A party whose advocate did not receive an emailed ruling must apply for extension of time to file the notice of appeal; filing out of time without leave renders the notice incompetent.
  • A mortgagor who has offered securities knowing they would be sold on default cannot claim the securities are unique; damages are an adequate remedy against a bank.

Court orders

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  1. 1.Application dismissed for want of jurisdiction
  2. 2.Applicant to bear the costs of the application

Authorities

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Legislation

  • Court of Appeal Rulesrule 5(2)(b)
  • Court of Appeal Rulesrule 75
  • Court of Appeal Rulesrule 75(2)
  • Employment and Labour Relations Procedure Rules, 2016rule 17

Cases cited (2)

  • Equity Bank Limited v West Link MBO Limited
    [2013] eKLR

    That the Court's stay jurisdiction arises only where a notice of appeal has been lodged under rule 75.

  • John Nduati Kariuki T/A Johester Merchants v National Bank Kenya Ltd
    [2006] 1 E.A. 96

    A borrower who offered securities knowing they would be sold on default cannot claim they are unique; the bank can refund any sums found due.

On appeal from
Employment and Labour Relations Court
E.L.R.C. Claim No. 1295 of 2018
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules; jurisdiction premised on a valid notice of appeal under rule 75

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, "Munanu v Equity Bank (K) Limited", Case Analysis (2022). Civil Application E447 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/791/eng@2022-06-24

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