SAMUEL NDIBA KIHARA & ANOTHER v HOUSING FINANCE COMPANY OF KENYA LIMITED & 2 OTHERS [2007] KECA 137 (KLR)
The bottom line
#Kenya's Court of Appeal refused to block new owners from taking possession of a repossessed home, finding the pending appeal would not be wasted.
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.Whether, unless an injunction is granted, the intended appeal would be rendered nugatory
Key legal issues
#Whether the intended appeal was arguable
Ground 4, relating to whether sections 60, 60A and 60B of the Transfer of Property Act exclude the doctrine of res judicata, was found arguable, though most other draft grounds did not arise from the ruling appealed against.
The court confined itself to grounds arising from the actual decision under appeal, which dismissed the chamber summons on res judicata grounds rather than on the merits. Applying its earlier decision in Uhuru Highway Development Limited v Central Bank of Kenya, the court found the contention that section 60 TPA excludes res judicata arguable, despite expressing its own view that no provision in sections 60, 60A or 60B excludes the general principle of res judicata.
Whether the intended appeal would be rendered nugatory if the injunction were not granted
No. Success on the intended appeal would merely restore the dismissed interlocutory application for hearing; the respondents' interim possession would not render the appeal nugatory.
The court analysed the direct effect of success: restoration of the dismissed application for hearing on the merits. Even if the restored application later succeeded, the purchasers would then be required to give vacant possession. Given that the 2nd and 3rd respondents were registered proprietors with indefeasible title under section 23 of the Registration of Titles Act and section 69B(2) of the Transfer of Property Act, it would be inequitable to deny them possession in the interim.
Legal principles established
#- An injunction pending appeal under Rule 5(2)(b) of the Court of Appeal Rules will only be granted where the applicant satisfies the Court both that the intended appeal is arguable and that the appeal would be rendered nugatory unless the injunction is granted.
- Where an application before the Court of Appeal is dismissed, an applicant who succeeds only in showing an arguable point must still demonstrate nugatory aspect; where the only effect of success on appeal is restoration of a dismissed application for hearing on the merits, possession by the respondents in the interim does not render the appeal nugatory.
Court orders
#- 1.Dismissal of the application for an injunction pending appeal under Rule 5(2)(b) of the Court of Appeal Rules
- 2.Costs of the application to be costs in the intended appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- H.C.C.C. No. 638 of 2006 (ruling dated 21st December, 2006)
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules (injunction pending intended appeal)
Relief refused
#Interlocutory injunction restraining the respondents from taking vacant possession, evicting, or interfering with the applicants' possession of L.R. No. 76/202 pending the intended appeal
The intended appeal, though arguable on the res judicata point, would not be rendered nugatory if the respondents took possession; and it would be inequitable to deny the registered purchasers possession of property to which they are legally entitled
Costs
The costs of this application shall be costs in the intended appeal.
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.
This Court can only grant an injunction pending appeal under Rule 5 (2) (b) of the Rules of this Court if the applicants satisfy us both that the intended appeal is arguable and further that unless the order of injunction in terms sought is granted the intended appeal would be rendered nugatory
We are unable to find any explicit or implicit provision in section 60, 60A, 60B of TPA which excludes the application of the general principle of res judicata.
By virtue of section 23 of the Registration of Titles Act, the 2nd and 3rd respondents are presently the absolute and indefeasible owners.
In the result, we dismiss the application. The costs of this application shall be costs in the intended appeal.
Issues in the judgment
#The judgment reproduces the provision as both section 69B(2) of the Transfer of Property Act and as '60B. (2)' in the quoted text, an internal inconsistency in section numbering.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "SAMUEL NDIBA KIHARA & ANOTHER v HOUSING FINANCE COMPANY OF KENYA LIMITED & 2 OTHERS [2007] KECA 137 (KLR)", Case Analysis (2007). Civil Appli 11 of 2007. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2007/137/eng@2007-11-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.