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Court of AppealDismissedCivil Application No. 165 of 2000

LALCHAND FULCHAND SHAH & ANOTHER v INVESTMENTS & MORTGAGES BANK LIMITED [2000] KECA 21 (KLR)

Court of Appeal
7 July 2000
806 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to stop a bank from selling charged land, ruling that vague claims of harm and dishonesty disqualify borrowers from injunctions.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Nairobi dismissing an application for relief (an injunction/stay of the threatened sale of the Applicants' charged property) in an intended appeal against the ruling of Mbaluto J of the High Court in H.C.C.C. No. 2533 of 1997 dated 18 February 2000. Akiwumi JA, concurring with the prior Ruling of Shah JA, held that the Applicants failed on both limbs of the rule 5(2)(b) test. On nugatory-ness, the Applicants' sworn averment that the appeal would become nugatory if the property was sold was a feeble and insubstantial formula that could not deny the respondent bank the fruits of its success; satisfactory pecuniary compensation could be awarded, land no longer being a 'sacred cow'. On arguability and equity, the court endorsed the High Court's finding that the Applicants had been less than candid in certifying that statutory provisions governing the charge had been explained to them when they had not been; coming to court with dirty hands, they were barred from the equitable relief of injunction. The court also agreed with the High Court's exposition of section 73 of the Evidence Act to the effect that the charge was properly executed. Relying on Halsbury's Laws of England, the court noted that a mortgagee will not be restrained from exercising a power of sale merely because the amount due is in dispute. The application was dismissed with costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the intended appeal would be rendered nugatory if the threatened sale of the suit property is not stayed
  2. 2.Whether the intended appeal is arguable
  3. 3.Whether the Applicants, coming with unclean hands, are entitled to the equitable relief of an injunction pending appeal

Key legal issues

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01

Whether the intended appeal would be rendered nugatory if the sale of the charged property proceeds

Holding

The Applicants failed the nugatory-ness test because their sworn averment was bare and unsubstantiated, and any loss could be met by pecuniary compensation.

Reasoning

The only deposition on the nugatory ground was a verbatim belief that the appeal would become nugatory if the property was sold. The court held such a formulaic averment insufficient to deny the respondent bank the fruits of its success in the superior court. Since the respondent is capable of paying damages, satisfactory pecuniary compensation can be awarded, and land is no longer a 'sacred cow', the sale proceeding would not render a successful appeal nugatory.

p. 2
02

Whether the Applicants were entitled to equitable relief of injunction

Holding

No. Having been less than candid in certifying that statutory provisions of the charge had been explained to them, the Applicants came to court with unclean hands and were barred from equitable relief.

Reasoning

The Applicants had certified that sections 69(1) and 100A of the Indian Transfer of Property Act 1882 as amended had been explained to them, yet asserted the explanation was never given, despite their own certification pointing to the advocate who drew the charge. The learned Judge was right to find them less than candid. Equity bars relief to a litigant with dirty hands, and that bar carried through to the application before the Court of Appeal.

p. 2
03

Whether the charge was properly executed

Holding

The court agreed with the High Court's exposition of the law on the effect of section 73 of the Evidence Act and the authorities to the effect that the charge was properly executed by the Applicants.

Reasoning

Akiwumi JA, while careful not to usurp the role of the bench that would eventually hear the intended appeal, stated that he agreed with the learned Judge's exposition of the law concerning the effect of section 73 of the Evidence Act and the authorities considered, to the effect that the charge was properly executed. This undermined the arguability of the intended appeal on that ground.

p. 2

Legal principles established

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  • A bare, formulaic assertion that an appeal will be rendered nugatory, without justifying facts on oath, does not satisfy the nugatory-ness test for an injunction or stay pending appeal.
  • Land is no longer a special category; where the respondent is capable of paying pecuniary compensation, the nugatory-ness test will generally not be met.
  • A litigant who comes to court with unclean hands is barred from obtaining the equitable relief of an injunction.
  • A mortgagee will not be restrained from exercising the power of sale merely because the amount due is in dispute; he will be restrained if the mortgagor pays the amount claimed into court.

Court orders

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  1. 1.The Applicants' application for relief in the intended appeal is dismissed with costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

SH
majority
On appeal from
High Court of Kenya at Nairobi
H.C.C.C. No. 2533 of 1997
Jurisdiction invoked
Rule 5(2)(b) jurisdiction of the Court of Appeal over intended appeals (injunction/stay pending appeal)

Relief refused

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Injunction/stay restraining the sale of the suit property pending the intended appeal

The averment that the appeal would become nugatory was feeble and insubstantial; satisfactory pecuniary compensation could be awarded; and the Applicants came to court with unclean hands, disentitling them to equitable relief

p. 2

Costs

The application is dismissed with costs (costs to the Respondent)

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

I am afraid that this sort of feeble and insubstantial averment on oath is not good enough.
p. 2Nugatory-ness test - insufficiency of bare averments
But satisfactory pecuniary compensation can be awarded and as this court has had occasion to observe, land is no longer a "sacred cow".
p. 2Land not a special case for injunctive relief pending appeal
They have come to this Court with the same dirty hands which alone, bars them from the granting of the equitable relief of injunction that they now seek.
p. 2Clean hands doctrine
In the result, since Shah, JA agrees that the Applicants' application be dismissed, it is hereby dismissed with costs. It is so ordered.
p. 2Final orders - dismissal with costs

Issues in the judgment

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minor

The judgment refers to a separate Ruling by Shah, JA which is not contained in the text supplied; only the Ruling of Akiwumi, JA is available, so the full coram and Shah JA's reasoning cannot be verified from this text.

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, "LALCHAND FULCHAND SHAH & ANOTHER v INVESTMENTS & MORTGAGES BANK LIMITED [2000] KECA 21 (KLR)", Case Analysis (2000). Civil Application No. 165 of 2000. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2000/21/eng@2000-07-07

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