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Case Brief · caselaw.co.ke
Court of AppealAllowedCivil Application No. 90 of 2016· [2017] KECA 169 (KLR)

Mary Atieno Nyamogo v Barclays Bank of Kenya Ltd

Court of Appeal
20 July 2017
1,695 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal stopped Barclays Bank from selling a Kisumu home because unexplained charges made the homeowner's appeal worth hearing.

What this practically means

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Executive summary

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This is a single ruling of the Court of Appeal at Kisumu (Kihara Kariuki, PCA, Gatembu and Murgor, JJ.A) on a Notice of Motion dated 3rd November 2016 under rule 5(2)(b) of the Court of Appeal Rules, in which Mary Atieno Nyamogo sought an injunction restraining Barclays Bank of Kenya Ltd from selling, alienating or transferring Title Number Kisumu/Nyalenda B/1069, her matrimonial home, pending an intended appeal against a judgment and decree of Kibunja, J. of the Environment and Land Court at Kisumu delivered on 26th October 2016. The dispute arose from a Kshs. 2.5 million loan secured by a charge over the property; the applicant claimed she had fully repaid the loan, while the bank asserted an outstanding balance of Kshs. 361,458.55 plus Kshs. 918,030.51 in debt collection and related costs. Applying the settled twin principles from Malcom Bell v Daniel Torotich Arap Moi - arguability and nugatory-ness - the court held that the complaint that the judge below misapprehended the facts concerning unascertained sums was arguable, and that a sale of the property would render the appeal nugatory since the applicant would lose both the property and sums paid. The earlier deposit of Kshs. 300,000 in court adequately safeguarded the bank's interests. The court granted the injunction in terms of prayer 2, ordered costs to be in the intended appeal, and directed the applicant to file her record of appeal within 45 days.

Key legal issues

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01

Whether the intended appeal was arguable

Holding

The ground that the court below misapprehended the facts regarding unascertained amounts claimed by the bank was arguable and not frivolous.

Reasoning

The applicant complained that the court below found she owed sums, including Kshs. 918,030.51 in debt collection charges, which were neither pleaded nor proved and which she did not know the composition of. On the basis of this complaint that the lower court misapprehended the facts regarding the unascertained amounts, the court considered the ground arguable rather than frivolous, which is the threshold at this interlocutory stage.

p. 3
02

Whether the appeal would be rendered nugatory if the suit property were sold

Holding

The appeal would be rendered nugatory if the suit property, the applicant's matrimonial home, were sold, since she would lose both the property and sums already paid; and the Kshs. 300,000 deposit in court adequately safeguarded the respondent's interests.

Reasoning

An impending sale of the suit property over disputed sums meant that if the applicant's claim to have repaid the loan were vindicated on appeal, she would have lost both the property and the sums paid; and if the debt collection charges were found unfounded, she would have lost the property on fictitious claims. The prior deposit of Kshs. 300,000 as security meant the respondent's interests were adequately protected, tipping the balance in favour of the injunction.

p. 3

Legal principles established

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  • An applicant under rule 5(2)(b) must satisfy the twin tests of an arguable appeal and that the appeal will be rendered nugatory if the injunction or stay is not granted.
  • The rule 5(2)(b) jurisdiction is original and discretionary and must be exercised on the basis of sound principles.

Court orders

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  1. 1.Order of injunction granted against execution of the judgment of the High Court of 26th October 2016 in terms of prayer number 2 in the Notice of Motion lodged on 3rd November 2016
  2. 2.Costs to be in the intended appeal
  3. 3.Applicant ordered to file her record of appeal within 45 days from the date of the ruling
On appeal from
High Court of Kenya at Kisumu (Environment and Land Court)
Kisumu ELC Case No. 798 of 2015
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules (injunction pending appeal)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Mary Atieno Nyamogo v Barclays Bank of Kenya Ltd", Case Analysis (2017). Civil Application No. 90 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/169/eng@2017-07-20

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.