Kiu Construction Limited & 2 Others v Credit Bank PLC & Another
The bottom line
#Kenya's Court of Appeal refused to stop Credit Bank from selling Kiu Construction's land and vehicles, because the appeal wasn't convincing and money damages could compensate any loss.
What this practically means
#Executive summary
#Key legal issues
#Arguability of the intended appeal under rule 5(2)(b)
The Court was not satisfied that the applicants had an arguable appeal; their contention that they never defaulted was contradicted by their own undisputed pending offer made during negotiations.
The Court examined the Draft Memorandum of Appeal, in which the applicants contended they were servicing the loan and had not defaulted. At plenary hearing, however, it emerged that the parties had been negotiating and the applicants had given an offer they were yet to settle, a fact they did not dispute. The Court cautioned itself against making definitive findings to avoid embarrassing the bench seized of the main appeal, but concluded that arguability had not been demonstrated.
Nugatory aspect of the rule 5(2)(b) test
Even on the nugatory limb, the applicants failed; the 1st respondent being a reputable financial institution would pay damages if the appeal succeeded.
The Court noted that in any event, the first respondent was a reputable financial institution that would pay the applicants damages in the event their intended appeal succeeded. Loss of the charged properties and motor vehicles therefore did not render the appeal irreversible or non-compensable, and the applicants had failed on both limbs, dooming the motion.
Legal principles established
#- An applicant under rule 5(2)(b) must satisfy the Court on both the arguability and nugatory limbs; failure on one limb is fatal to the application.
- An arguable appeal under rule 5(2)(b) need not necessarily succeed; it suffices that it is not frivolous or idle.
- Where the respondent is a reputable financial institution capable of paying damages, the nugatory limb will generally not be satisfied.
Court orders
#- 1.The applicants' motion dated 2nd July 2024 was dismissed
- 2.Costs of the application awarded to the respondents
- On appeal from
- High Court of Kenya at Nairobi (Milimani)
- HCCOMM No. E397 of 2023 - Kiu Construction Limited & 2 Others v Credit Bank PLC & Another
- 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, "Kiu Construction Limited & 2 Others v Credit Bank PLC & Another", Case Analysis (2024). Court of Appeal Application by Notice of Motion dated 2nd July 2024 (arising from Milimani HCCOMM No. E397 of 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1594/eng@2024-11-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.