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Court of AppealDismissedCourt of Appeal Application, Motion dated 25th June 2023· [2023] KECA 1529 (KLR)

Greenfield Petroleum Limited & another v DIB Bank Kenya & another (Civil Appeal (Application) E099 of 2023) [2023] KECA 1529 (KLR)

Court of Appeal of Kenya
8 December 2023
843 words in judgment
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The bottom line

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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

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Executive summary

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This is a ruling of the Court of Appeal at Mombasa (S. Gatembu Kairu, P. Nyamweya and G.V. Odunga, JJ.A) delivered on 8th December 2023 on a motion dated 25th June 2023 brought under Rule 5(2)(b) of the Court of Appeal Rules. The applicants sought conservatory orders restraining the respondents from advertising, offering for sale, alienating, transferring, disposing of or auctioning properties known as L.R. No. MN/I/15338 (Original No. MN/I/15266/73) and Mombasa/Block 1/431 pending the hearing of their appeal. The orders targeted the 1st respondent bank's statutory power of sale over properties charged to secure banking facilities. The motion challenged a ruling of the High Court at Mombasa (F. Wangari, J.) delivered on 25th May 2023 dismissing the applicants' application for an interlocutory injunction, in which the Judge found no prima facie case within the Giella v Cassman Brown principles and held the applicants guilty of material non-disclosure. The Court of Appeal dismissed the motion on three grounds. First, although counsel referred to a notice of appeal, none was exhibited or served, and without a notice of appeal the Court had no jurisdiction. Second, the Court entertained doubts that the intended appeal was arguable, since the draft grounds did not show that the Judge's discretionary decision was plainly wrong. Third, the nugatory test failed because damages would be an adequate remedy. The application was dismissed with costs to the respondents.

Key legal issues

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01

Jurisdiction premised on a notice of appeal

Holding

The Court declined to exercise jurisdiction because no notice of appeal was shown to have been filed or served.

Reasoning

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.

p. 2
02

Whether the intended appeal is arguable

Holding

The Court entertained doubts that the intended appeal is arguable.

Reasoning

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.

p. 2
03

Whether the appeal would be rendered nugatory

Holding

The nugatory test was not satisfied because damages would be an adequate remedy.

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 1.The application fails and is dismissed with costs to the respondents

Authorities

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Legislation

  • Court of Appeal RulesRule 5(2)(b)
  • Land ActSection 97

Cases cited (6)

  • Giella vs. Cassman Brown & Co Ltd
    [1973] EA 358
  • Trust Bank Limited and another vs. Investech Bank Limited and 3 others
    [2000] eKLR
  • NIC Bank Limited & 2 others vs. Mombasa Water Products Limited
    [2021] eKLR
  • Stanley Kangethe Kinyanjui vs Tony Ketter & 5 Others
    C.Applic. No. 31 of 2021 [2013] eKLR
  • Attorney General vs. Kazungu
    C.A.(Applic) No. E078 of 2022 [2023] KECA 498 (KLR)
  • Kandie vs. Lekakeny
    Civil Applic. No. E094 of 2021 [2022] KECA 447 (KLR)
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

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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, "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.