Greenfield Petroleum Limited & another v DIB Bank Kenya & another (Civil Appeal (Application) E099 of 2023) [2023] KECA 1529 (KLR)
The bottom line
#The Court of Appeal dismissed borrowers' bid to block a bank's property sale because they never filed a notice of appeal.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction premised on a notice of appeal
The Court declined to exercise jurisdiction because no notice of appeal was shown to have been filed or served.
Although counsel referred to a notice of appeal having been filed, it was neither attached to the application nor exhibited to the supporting affidavit. Counsel for the respondents maintained none had been served. Relying on precedent, the Court held that the absence of a notice of appeal deprives it of jurisdiction, which is fatal to the motion regardless of its merits.
Whether the intended appeal is arguable
The Court entertained doubts that the intended appeal is arguable.
The impugned ruling involved the exercise of judicial discretion in declining an interlocutory injunction. The draft memorandum of appeal did not allege that the Judge considered matters she should not have, failed to consider matters she should have, or that the decision was plainly wrong. An arguable appeal need not necessarily succeed, but on these grounds the threshold was not met.
Whether the appeal would be rendered nugatory
The nugatory test was not satisfied because damages would be an adequate remedy.
There was no contest that the charged properties are charged to the Bank to secure facilities. The applicants did not demonstrate why damages would not adequately compensate them if the exercise of the statutory power of sale were ultimately found to be irregular.
Legal principles established
#- Without a notice of appeal on record, the Court of Appeal has no jurisdiction to entertain an application under Rule 5(2)(b).
- An arguable appeal need not be one that must necessarily succeed, but the applicant must demonstrate from the draft grounds that the decision below is complained of on proper grounds.
- Where the dispute concerns charged property securing banking facilities and there is no contest as to the charge, damages may be an adequate remedy defeating a nugatory-aspect showing.
Court orders
#- 1.The application fails and is dismissed with costs to the respondents
- On appeal from
- High Court of Kenya at Mombasa
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules (noted that without a notice of appeal the Court has no jurisdiction)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Greenfield Petroleum Limited & another v DIB Bank Kenya & another (Civil Appeal (Application) E099 of 2023) [2023] KECA 1529 (KLR)", Case Analysis (2023). Court of Appeal Application, Motion dated 25th June 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/1529/eng@2023-12-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.