George Town Travel & Tour Limited v SBM Bank (Kenya) Limited & 2 others
The bottom line
#Kenya's Court of Appeal refused to stop a bank from selling a borrower's property because money damages could compensate the borrower.
What this practically means
#Executive summary
#Key legal issues
#Threshold for relief under rule 5(2)(b)
The applicant must show both an arguable appeal and that the appeal would be rendered nugatory; both limbs are mandatory.
The court restated the settled principles from Chris Munga N Bichage and Trust Bank v Investech: the jurisdiction is original and discretionary, and the two guiding principles must be considered against the facts of each case. An arguable appeal need not be one that would succeed; a single bona fide arguable issue suffices, but the nugatory limb must also be satisfied.
Arguability of the intended appeal
The rescission of the private-treaty sale agreement is an arguable ground on which the applicant should be heard.
The court found the applicant did not dispute the loan, the charge or its default; the only dispute was whether the sale agreement with the 2nd and 3rd respondents had been rescinded. That dispute raised an arguable issue, so the first limb was satisfied.
Whether the appeal would be rendered nugatory
The appeal would not be rendered nugatory because the property had been auctioned and the applicant can be compensated in damages by the bank.
The suit property had already been sold by auction, overtaking the application. No assertion was made that the respondent bank is incapable of compensating the applicant; where damages are an adequate remedy, injunction is unavailable. The applicant therefore failed the second limb.
Legal principles established
#- An applicant under rule 5(2)(b) must establish both that the appeal is arguable and that it will be rendered nugatory if the relief is not granted; demonstrating only one limb is insufficient.
- Where the remedy sought can be compensated by an award of damages, equitable relief of injunction is not available.
Court orders
#- 1.The application for injunction pending the hearing and determination of the intended appeal is dismissed with costs to the respondent
- On appeal from
- High Court of Kenya at Nairobi
- HCCC No. E92 of 2021
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "George Town Travel & Tour Limited v SBM Bank (Kenya) Limited & 2 others", Case Analysis (2022). Civil Appeal E238 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1310/eng@2022-12-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.