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Court of AppealAllowedCivil Application E239 of 2021

Warui & another v HFC Limited & 2 others

Court of Appeal
19 May 2022
RNR.N. NambuyeJMJ. MohammedSKS. ole Kantai
1,151 words in judgment
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The bottom line

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Kenya's Court of Appeal stopped the transfer of a family home sold at auction a day early, protecting the owners while their appeal is heard.

What this practically means

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Executive summary

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The applicants sought an injunction pending an intended appeal against a High Court ruling (Okwany, J., 1st July 2021) that dismissed their application to restrain HFC Limited and two auctioneers from dealing with House No. 8 on L.R. No. Ngong/Ngong/47118, Karen, following a public auction conducted on 24th October 2019, a day before the advertised sale date. The Motion was brought under rules 5(2)(b) and 42 of the Court of Appeal Rules. The applicants argued the intended appeal was arguable because the Judge failed to consider supplementary and further affidavits and because conducting the auction a day early amounted to fraud; they contended the appeal would be rendered nugatory if the property were transferred to a third party. The 1st respondent maintained the Motion was misconceived, the sale was proper, the discretionary relief was rightly refused, and damages would suffice. The 3rd respondent asked to be excused as having no interest. Applying the settled rule 5(2)(b) principles as summarised in Stanley Kangethe Kinyanjui v Tony Ketter, the court found the grounds on non-consideration of affidavits and the premature auction to be arguable, reiterating that an arguable point need not succeed and that one arguable point suffices. Balancing the parties' interests, it held that transfer of the matrimonial home to a third party would prejudice the applicants and render the appeal nugatory. The court allowed the Motion, confirmed the interim injunction it had issued on 15th December 2021, and ordered costs of the Motion to be in the appeal.

Key legal issues

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01

Arguability of the intended appeal

Holding

The grounds that the Judge failed to consider supplementary affidavits and that the auction took place a day before the advertised date are arguable points.

Reasoning

The court perused the draft Memorandum of Appeal and identified two intended grounds: non-consideration of affidavits and conduct of the auction on 24th October 2019 when it was advertised for 25th October 2019, potentially a fraudulent sale. Applying settled rule 5(2)(b) principles, it held these points were arguable, stressing that arguability does not require prospects of success.

02

Whether the appeal would be rendered nugatory

Holding

Transfer of the matrimonial home to a third party would prejudice the applicants and render the appeal nugatory; preservation of the pre-sale status was warranted.

Reasoning

The applicants deponed that the suit property is their matrimonial home and could be transferred beyond their reach if sold. The 1st respondent claimed it could pay damages. Balancing the parties' interests, the court found that transfer to a third party would prejudice the applicants, and preserved the status quo pending appeal.

Legal principles established

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  • An applicant for injunction or stay pending appeal under rule 5(2)(b) must demonstrate the appeal is arguable and that it would be rendered nugatory absent the relief.
  • An arguable point need not be one that will succeed, nor need an applicant raise a multiplicity of points; one arguable point suffices.

Court orders

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  1. 1.The Motion is allowed
  2. 2.The interim injunction ordered on December 15, 2021 is confirmed
  3. 3.Costs of the Motion will be in the appeal
On appeal from
High Court of Kenya at Nairobi
H.C.C.C. No. E377 of 2019
Jurisdiction invoked
Rules 5(2)(b) and 42 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, "Warui & another v HFC Limited & 2 others", Case Analysis (2022). Civil Application E239 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/816/eng@2022-05-19

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