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
#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
- 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
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.