Florence Khayanga Musanga v Transnational Bank Ltd & another [2020] KECA 36 (KLR)
The bottom line
#Kenya's Court of Appeal refused to stop the sale of a borrower's charged land because she failed to show her appeal was arguable or that money couldn't compensate her loss.
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 the intended appeal will be rendered nugatory if the order of injunction is not granted
- 3.Whether the learned Judge correctly exercised her discretion in refusing the order of injunction
Key legal issues
#Whether the intended appeal is arguable and will be rendered nugatory under Rule 5(2)(b)
The application fails because the applicant established neither an arguable appeal nor that it would be rendered nugatory; the alleged breaches of the Land Act were contradicted by findings that the notices were issued and that the applicant did not dispute the debt.
The court applied the settled Rule 5(2)(b) twin principles as set out in Stanley Kengethe Kinyanjui v Tony Ketter. On the first limb, both courts below had found that the statutory notices were issued and that the applicant had not established a prima facie case under the Mrao definition. On the second limb, the court independently assessed irreparable harm and concluded any loss would be compensable in damages under the Nguruman standard, since an injury compensable by damages is not irreparable.
Whether the High Court judge correctly exercised her discretion in dismissing the injunction application
The judge correctly exercised her discretion; the two courts below correctly recited and applied the Giella principles and the Mrao definition of a prima facie case, so there was no basis for interference.
The court reminded itself that the grant of an injunction is discretionary and that an appellate court interferes only where the discretion was exercised on wrong principles or relevant matters were ignored, per Mbogo v Shah. Both courts below were found to have been acutely aware of the guiding principles, having referred to Giella v Cassman Brown and Mrao, and the judge's finding that the notices were issued was not faultable. The court also noted it could not make conclusive findings that would prejudice pending proceedings.
Legal principles established
#- An applicant under Rule 5(2)(b) must demonstrate that the appeal or intended appeal is arguable and that it will be rendered nugatory if the injunction is not granted; a single arguable ground suffices.
- The Court of Appeal will not interfere with the exercise of discretion by an inferior court unless the decision is clearly wrong, based on misdirection, or on a failure to consider relevant matters.
Court orders
#- 1.The application for an injunction pending intended appeal is dismissed
- 2.Costs of the application to the 1st respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Eldoret
- Eld. H.C.A. No. 84 of 2019
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules (application for injunction pending intended appeal)
Relief refused
#Order of injunction restraining sale, transfer or advertisement of the charged property pending the intended appeal
The applicant failed to meet the twin principles of an arguable appeal and the appeal being rendered nugatory; any loss could be compensated by damages
Costs
Dismissed with costs to the (1st) respondent
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.
The applicant having failed to meet the twin principles, this application fails, and it is accordingly dismissed with costs to the respondent.
for an applicant to succeed in an application such as the one before us, he/she needs to demonstrate that the appeal or intended appeal is arguable; and secondly that the same will be rendered nugatory in the event the appeal succeeds
we are persuaded that any loss that would be suffered by the applicant can well be recompensed by an order in damages.
we cannot make any conclusive findings that would prejudice the pending proceedings.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Florence Khayanga Musanga v Transnational Bank Ltd & another [2020] KECA 36 (KLR)", Case Analysis (2020). Civil Application No. 45 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/36/eng@2020-12-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.