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ELCAllowedAppeal from Meru C.M.ELC No. 30 of 2018 (Notice of Motion dated 26th September 2019)· [2020] KEELC 2350 (KLR)

Consolidated Bank of Kenya Ltd v Monica Wangari Ndungu & 5 others [2020] KEELC 2350 (KLR)

Environment and Land Court
20 May 2020
1,848 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court in Meru blocked the sale of a charged property and paused the lower court case to keep the bank's appeal alive.

What this practically means

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Executive summary

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Consolidated Bank of Kenya, as applicant in an appeal from Meru C.M.ELC No. 30 of 2018, moved the Environment and Land Court at Meru by Notice of Motion dated 26th September 2019 seeking inhibition and injunction orders over L.R. Ntima/Igoki/7408 and a stay of the trial court proceedings. The bank had advanced Kshs. 13,600,000/= secured by a 2012 charge over the property, only to discover that its charge had purportedly been discharged in 2013 and a fresh charge created in favour of the 5th respondent (later succeeded by the 6th respondent). The trial court had dismissed its injunction application on 10th September 2019, holding the fraud claim statute barred. The 6th respondent opposed, contending it could not be dragged into the appeal having not been a party below and that the issues had already been canvassed. Mbugua J applied the Nguruman triple test and the Global Tours & Travels principles on stay of proceedings. Declining to determine the fraud allegation at the interlocutory stage, the court held the substratum of the appeal had to be preserved, since a sale would render the appeal nugatory. The application was allowed: injunction, inhibition and stay were granted for eight months or until further orders, conditional on the appellant filing its record of appeal within 30 days; the 5th and 6th intended defendants were at liberty to participate in the appeal; directions were set for 22nd June 2020; and costs were reserved to the appeal. The ruling was delivered electronically under the COVID-19 practice directions.

Key legal issues

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01

Injunction and inhibition over the suit property pending appeal

Holding

Temporary orders of injunction and inhibition were justified to preserve the substratum of the appeal, as a sale would render the appeal nugatory

Reasoning

The court held it could not determine fraud at the interlocutory stage; its concern was preserving the suit premises. Although the 5th and 6th respondents were not formal parties, they were aware of proceedings and in haste to dispose of the property. A sale would render the appeal nugatory since the central issue was whether the trial magistrate erred in dismissing the injunction prayer.

02

Stay of trial court proceedings

Holding

Stay of the trial court proceedings was granted as a justifiable case in the interest of justice

Reasoning

Applying the Ringera J principles, the court weighed the pros and cons and found the application merited. The lower court file had already been transmitted to the high court for the appeal, supporting the grant of stay to avoid parallel proceedings while the appeal was prosecuted.

p. 3
03

Limitation defence regarding fraud claim

Holding

The trial court had found the fraud claim against the 5th and 6th respondents statute barred, but this court declined to determine fraud at the interlocutory stage

Reasoning

The trial court had held the applicant was aware of the alleged fraud from 2014 and filed out of time. The applicant had not sought leave to bring the action out of time. This court nonetheless declined to determine the fraud issue at this stage, focusing instead on preservation of the suit property pending appeal.

p. 2

Legal principles established

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  • An applicant for an interlocutory injunction must sequentially establish a prima facie case, irreparable injury, and that the balance of convenience lies in his favour
  • A court may look beyond the Giella principles to the circumstances of the case and the overriding objective when dealing with interlocutory injunctions
  • Whether to stay proceedings pending appeal is a judicial discretion exercised in the interest of justice, weighing pros and cons including expeditious disposal, arguability of the appeal and expedition of the application

Court orders

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  1. 1.The application dated 26.9.2019 is allowed where the orders shall last for a period of 8 (eight) months or until further orders are given by the court
  2. 2.The appellant shall file and serve the Record of appeal upon all the parties herein within 30 days from the date of delivery of this ruling failure to which the orders granted in point 1) above shall lapse
  3. 3.For purposes of this appeal, the 5th and 6th intended defendants are at liberty to participate in the appeal
  4. 4.Directions on the hearing of the appeal shall be given on 22.6.2020 either virtually or in open court depending on the prevailing directives regarding covid-19 pandemic
  5. 5.The costs of this application shall be determined in the appeal

Authorities

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Legislation

  • Civil Procedure RulesOrder 21 rule 1

Cases cited (4)

  • Nguruman Limited v Jan Bonde Nielsen & 2 others
    CA No. 77 of 2012; [2014] eKLR
  • Jan Bolden Nielsen vs. Herman Philliipus Steya Also Known As Hermannus Phillipus Steyn & 2 Others
    (2012) eKLR
  • Suleiman vs, Amboseli Resort Ltd.
    (2004) eKLR 589
  • Global Tours & Travels Limited; Nairobi HC Winding Up Cause No. 43 of 2000
On appeal from
Chief Magistrate's Court (Meru C.M.ELC No. 30 of 2018)
30 of 2018
Jurisdiction invoked
Appellate/interlocutory jurisdiction of the Environment and Land Court over an appeal from the Chief Magistrate's ELC court

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, "Consolidated Bank of Kenya Ltd v Monica Wangari Ndungu & 5 others [2020] KEELC 2350 (KLR)", Case Analysis (2020). Appeal from Meru C.M.ELC No. 30 of 2018 (Notice of Motion dated 26th September 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2350/eng@2020-05-20

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.