Mavoko Water & Sewerage Company v Credit Bank Kenya Limited & 1 other
The bottom line
#The Court of Appeal refused to stop Credit Bank from selling charged property because Mavoko Water's intended appeal was not arguable.
What this practically means
#Executive summary
#Key legal issues
#Arguability of the intended appeal
The intended appeal was not arguable; the claim to manage the sewerage plant on the charged private property lacked merit, the applicant had not acquired the portion claimed, the sale agreement did not involve the chargee, and the applicant was a surrogate of the defaulting borrower
The court doubted whether the mandate question should occupy it, since the sewerage plant sits on the 1st respondent's private property charged to the 2nd respondent. The applicant had not legally acquired the portion, the agreement's clause suggested takeover only after 10 years, the chargee was not party to the agreement, and no part of the charged property could be hived off without the chargee's consent. The applicant's conduct and non-compliance with prior conditional orders supported the surrogate finding.
Nugatory aspect and public interest
Not reached, because both limbs must be satisfied and the arguability limb had failed
Since the twin test under rule 5(2)(b) requires satisfaction of both the arguability and nugatory principles, the court found no need to address the nugatory aspect or public interest after failing the first limb. Public interest was described as a late entrant among the considerations, relevant only depending on the nature of the dispute.
Legal principles established
#- Rule 5(2)(b) jurisdiction is original and discretionary; an applicant must show both that the appeal is arguable and that it will be rendered nugatory absent the orders sought
- Both limbs of the rule 5(2)(b) test must be demonstrated; failure on the arguability limb disposes of the application without considering nugatory aspect or public interest
Court orders
#- 1.The Motion dated 11th March 2024 is dismissed with costs to the 2nd respondent
- On appeal from
- High Court
- Jurisdiction invoked
- Rules 1(2) and 5(2)(b) of the Court of Appeal Rules
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Mbaazi Residents Association & 1 other v Metricon Home Nairobi Co. Ltd & 2 others[2025] KECA 627 (KLR)4 Apr 2025
Cite this brief
#Cite this brief
Caselaw, "Mavoko Water & Sewerage Company v Credit Bank Kenya Limited & 1 other", Case Analysis (2024). Notice of Motion dated 11th March 2024 (Rule 5(2)(b) application in intended appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/918/eng@2024-07-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.