Campus Hostels Limited v Housing Finance Company Limited & another
The bottom line
#Kenya's Court of Appeal refused to stop a property transfer after auction, ruling that money damages can adequately compensate the losing party.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction where conservatory orders are sought under Rule 5(2)(b)
The application was properly before the Court because the substance of the prayer was an injunction, and the Rule 5(2)(b) discretion is wide
Although the nomenclature of conservatory orders is normally used in public law litigation, the wording of the prayer showed an injunction against private parties was sought. Rule 5(2)(b) permits stay, injunction or stay of proceedings on such terms as the Court thinks just, so the application was properly before the Court.
Arguability of the intended appeal
The appeal was arguable on the challenge to the res judicata finding
The Applicant faulted the trial court's finding that its third injunction application was res judicata and raised various grounds in the memorandum of appeal demonstrating that error. Issues deserving of consideration suffice for arguability regardless of ultimate merit.
Nugatory limb
The appeal would not be rendered nugatory if the injunctions were not granted
Three reasons: the suit property had been transferred to the 1st Respondent following the auction; the Applicant's tenant occupied the property pursuant to a court order in Mombasa CMCC 1549 of 2021, making further injunctions superfluous and an abuse of process; and any prejudice from the auction is adequately compensable by damages.
Legal principles established
#- For an appeal to be arguable it need only raise issues deserving of consideration, irrespective of whether they will succeed
- The two principles for stay under Rule 5(2)(b) are an arguable appeal and that the appeal would be rendered nugatory without the order
- Where the substance of a prayer is an injunction, the nomenclature of conservatory order does not defeat the application; Rule 5(2)(b) discretion is wide
Court orders
#- 1.The Notice of Motion application dated 3rd June 2020 is dismissed with costs to the 1st Respondent
- On appeal from
- High Court of Kenya at Mombasa
- High Court Civil Suit No. 4 of 2016
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules, Section 3A and 3B of the Appellate Jurisdiction Act and Article 159 of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Campus Hostels Limited v Housing Finance Company Limited & another", Case Analysis (2022). Civil Application 32 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1324/eng@2022-12-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.