Winfred Wambui Kingori v Paramount Universal Bank Limited & 2 others [2013] KECA 355 (KLR)
The bottom line
#Kenya's Court of Appeal refused to stop the resale of charged land, ruling the applicant failed to show her appeal was arguable or that damages couldn't compensate her.
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, if the intended appeal were to succeed, it would be rendered nugatory in the absence of an injunction
Key legal issues
#Arguability of the intended appeal
The court was not persuaded that the intended appeal was arguable; the alleged defective charges and lack of notice were matters left for the appellate court, with no definitive findings made.
The applicant proffered that the charge documents were not signed before an advocate and that no proper notice preceded the exercise of the power of sale. The respondents pointed to a charge signed before Salim Danji & Co. Advocates and a certificate of posting. The court declined to make definitive findings on contested facts but concluded the applicant had not demonstrated arguability.
Nugatory aspect
Having failed on arguability, the court found the nugatory test could not save the application; damages would be an adequate remedy if the appeal succeeded.
The court stated it need not delve into the nugatory aspect once arguability failed, but observed that the applicant would have a remedy in damages were the appeal to succeed, so the appeal would not be rendered nugatory. This mirrors the High Court's finding that the applicant's remedy lay in damages.
Legal principles established
#- An applicant under Rule 5(2)(b) must satisfy the twin principles of arguability of the appeal and nugatory impact if the order sought is refused.
- The applicant need only establish one arguable point in the appeal, but must also establish the nugatory aspect.
Court orders
#- 1.The notice of motion dated 9th July 2009 is dismissed
- 2.Costs of the application awarded to the respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- HCCC No. 605 of 2003
- Jurisdiction invoked
- Rules 5(2)(b) and 42 of the Court of Appeal Rules
Relief refused
#Injunction restraining the 2nd and 3rd respondents from selling or retransferring LR No. 13824 pending the intended appeal
The court was not persuaded on the arguability of the intended appeal, and damages would be an adequate remedy
Injunction restraining the 1st respondent from selling or disposing of the property on LR No. 14600
Prayer one was conceded to have been overtaken by events, the property having already been sold and transferred
Costs
Dismissed with costs to the respondents
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.
It is now settled law that for an application of this nature to succeed, the applicant must satisfy two twin principles
The applicant need only establish that there is one arguable point in his/her appeal but in addition, establish the nugatory aspect.
In sum, we are not persuaded that this application meets the threshold required for such applications to succeed It must therefore fail and the same is dismissed with costs to the respondents.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Winfred Wambui Kingori v Paramount Universal Bank Limited & 2 others [2013] KECA 355 (KLR)", Case Analysis (2013). Civil Application 202 of 2009. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2013/355/eng@2013-04-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.