Peter G. N. Nganga v Daniel Gichanga Kariuki t/a Watts Enterprises (A Firm) & another [2009] KECA 11 (KLR)
The bottom line
#Kenya's Court of Appeal refused to stop a bank selling charged land because the applicant could recover the land's value in damages.
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, Civil Appeal No. 140 of 2007, is arguable
- 2.Whether, if the orders sought are not granted, the success of the intended appeal would be rendered nugatory
Key legal issues
#Whether the twin tests for an injunction pending appeal under rule 5(2)(b) were satisfied
The court gave the applicant the benefit of the doubt on arguability but refused the injunction because the nugatory limb failed: any loss is recoverable in damages from a reputable, asset-rich bank
The court traced a history of serial interlocutory applications aimed solely at restraining the bank from selling the charged property. It found the appeal arguably arguable but held that the applicant, having used the property as commercial security for a third party's loan, could claim the property's value and damages if the appeal succeeded. He never asserted the bank could not reimburse him, nor any sentimental attachment, so refusal would not render success nugatory.
Legal principles established
#- An applicant under rule 5(2)(b) must demonstrate, first, that the appeal or intended appeal is arguable, and second, that if the orders sought are not granted, the success of the appeal, should it succeed, will be rendered nugatory
Court orders
#- 1.The notice of motion dated 31st August 2009 seeking an 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 Milimani
- H.C.C.C. No. 40 of 2003
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules
Relief refused
#Injunction restraining the respondents from selling, disposing of, transferring, alienating, offering for sale, charging or otherwise interfering with the suit property pending the outcome of Civil Appeal No. 140 of 2007 (with alternative relief to like effect)
Although the court reluctantly found the appeal arguable, the applicant failed to establish that the appeal's success would be rendered nugatory, since he could recover the value of the property and damages from the bank, an asset-rich institution, and had shown no sentimental attachment to the property
Costs
No order as to costs - each party to bear their own costs of the application
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.
For an applicant to benefit under that rule he must demonstrate, first that the appeal or intended appeal upon which that application is premised is arguable and second, that if the orders sought are not granted, the success of that appeal, should it succeed, will be rendered nugatory.
we are not persuaded that if the application is refused, the success of the appeal will be rendered nugatory.
That being our view of the matter, this application cannot succeed. It is dismissed. However, in the circumstances of this dispute, we make no order as to costs.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Peter G. N. Nganga v Daniel Gichanga Kariuki t/a Watts Enterprises (A Firm) & another [2009] KECA 11 (KLR)", Case Analysis (2009). Civil Appli 270 of 2009 (UR 187/2009). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2009/11/eng@2009-12-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.