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Court of AppealAllowedCivil Application No. Nai. 251 of 2000 (UR. 119/2000)· [2000] KECA 366 (KLR)

K.h. Osmond v Daima Bank Limited & 1 other

Court of Appeal
8 September 2000
924 words in judgment
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The bottom line

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Kenya's Court of Appeal halted the auction of a lawyer's office because the bank's sale notice failed to state the required three-month warning period.

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 (Kwach, Shah and O'Kubasu, JJ.A) on an application under rule 5(2)(b) of the Court of Appeal Rules for stay of execution of a High Court judgment (Gacheche, Commissioner of Assize, 12 July 2000, H.C.C.C. No. 3052 of 1997) dismissing the applicant's suit seeking to restrain the sale of Plot L.R. 1/185 Argwings Kodhek Road, Nairobi, a declaration that the mortgage was null and void, taking of accounts, and damages for breach of contract and wrongful exercise of the statutory power of sale. The court restated the twin tests for rule 5(2)(b) applications: arguability of the intended appeal and nugatory value. It found the appeal arguable on several grounds: the High Court's finding that the statutory notice under section 69(A)(i) of the Transfer of Property Act was invalid, read against the five-judge decision in Trust Bank v Eros Chemists requiring express statement of the three-month period; the tension between rule 15(d) of the Auctioneers Rules 1997 (45 days' notice) and the statutory three-month period; the effect of the bank's counter-claim judgment; and the question of penal interest. The nugatory test was satisfied because sale of the property, from which the applicant conducted his legal practice, would be irreversible. The application was allowed, stay of execution granted pending the intended appeal, with costs of the application to be costs in the intended appeal.

Key legal issues

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01

Arguability of the intended appeal

Holding

The intended appeal was not frivolous: the invalidity of the statutory notice, the interaction between rule 15(d) of the Auctioneers Rules and the three-month period, the effect of the counter-claim judgment, and penal interest were all arguable points.

Reasoning

The High Court had found the statutory notice invalid, and the five-judge decision in Trust Bank v Eros Chemists required a three-month period to be expressly stated. The court also identified unresolved questions on the Auctioneers Rules notice period, the counter-claim, and penal interest, all requiring full argument before the appeal bench.

p. 2
02

Nugatory value of the appeal

Holding

If the suit property were sold and the appeal later succeeded, the property would no longer be available to the applicant, whose livelihood depends on his legal practice conducted from it.

Reasoning

The court found the nugatory test easily satisfied because the sale of the suit property would be irreversible in practical terms, destroying the subject matter of the appeal and the applicant's source of livelihood.

p. 2
03

Format and period of statutory notice under section 69(A)(i) of the Transfer of Property Act

Holding

Following Trust Bank v Eros Chemists, a notice to sell charged property must expressly state that sale will occur after the three-month statutory period; omission or a shorter period renders the notice invalid.

Reasoning

The court, sitting as a five-judge bench to resolve conflicting earlier decisions, held that the three-month period is a statutory right of the mortgagor that cannot be curtailed by the notice. This principle was applied in assessing arguability.

p. 2

Legal principles established

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  • An application under rule 5(2)(b) requires the applicant to satisfy two tests: an arguable appeal and that the appeal would be rendered nugatory without stay.
  • A statutory notice under section 69(A)(i) of the Transfer of Property Act must expressly state that sale shall take place after the three months' period; a lesser period renders the notice invalid.

Court orders

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  1. 1.Stay of execution of the decree in H.C.C.C. No. 3052 of 1997 pending the hearing and determination of the intended appeal or further orders
  2. 2.Costs of the application to be costs in the intended appeal
On appeal from
High Court of Kenya at Nairobi
H.C.C.C. No. 3052 of 1997
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules

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, "K.h. Osmond v Daima Bank Limited & 1 other", Case Analysis (2000). Civil Application No. Nai. 251 of 2000 (UR. 119/2000). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2000/366/eng@2000-09-08

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