ALI MAHMUD SHEIKH MOHAMED,SALEM SHEIKH OMAR & JAMAL MAHMUD SHEIKH MOHAMED vs KENYA COMMERCIAL BANK LIMITED [2001] KECA 237 (KLR)
The bottom line
#The Court of Appeal refused to stop KCB's debt claim because the borrowers admitted owing the money and had no arguable appeal.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the intended appeal is arguable
- 2.If arguable, whether the appeal would be rendered nugatory in the absence of an injunction pending appeal
Key legal issues
#Whether the intended appeal was arguable so as to warrant an injunction pending appeal
The appeal was not arguable. The applicants admitted the debt, had made no payment or arrangements to pay, and their only point - absence of evidence that the three months statutory notice was posted - was contradicted by the finding below that the notice was posted.
The court noted the applicants' admission that money was owed and that no payment or payment arrangements had been made since the suit was filed on 13th September 2001. Their sole contention was that there was no evidence the statutory notice was posted, but the Commissioner of Assize had found it was posted. On that material the court could not discern an arguable point, and having failed the first limb, the nugatory question did not arise.
Legal principles established
#- An applicant for an injunction pending appeal must first satisfy the court that the intended appeal is arguable; only if that threshold is met does the court consider whether the appeal would be rendered nugatory.
Court orders
#- 1.The application for injunction pending appeal is dismissed
- 2.No order as to costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Mombasa
- H.C.C.S. No. 455 of 2001
- Jurisdiction invoked
- Inherent appellate jurisdiction to grant an injunction pending appeal (Rule 5(2)(b) application, though the rule is not expressly named in the ruling)
Relief refused
#Injunction pending appeal
The intended appeal was not arguable; the applicants admitted the debt and had made no payment or arrangements to pay, and the point on the statutory notice was not arguable
Costs
No order as to costs - the court made no order as to the costs of the motion
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
There is no merit in this motion and we order that it be dismissed but we make no order as to the costs thereof.
we do not think that the intended appeal is arguable and that being so, we do not need to consider the second point of whether it would be rendered nugatory
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "ALI MAHMUD SHEIKH MOHAMED,SALEM SHEIKH OMAR & JAMAL MAHMUD SHEIKH MOHAMED vs KENYA COMMERCIAL BANK LIMITED [2001] KECA 237 (KLR)", Case Analysis (2001). Civil Application No. Nai 403 of 2001 (214/01 UR). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2001/237/eng@2001-11-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.