Samy Ghannam v SBM Bank Kenya Ltd & 2 others [2021] KECA 373 (KLR)
The bottom line
#Kenya's Court of Appeal refused to stop an auctioned property's sale because the borrower's intended appeal had no arguable point after he breached a prior consent order.
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 (not frivolous)
- 2.Whether the appeal would be rendered nugatory absent stay or injunction
Key legal issues
#Whether the intended appeal was arguable under Rule 5(2)(b)
The application fails because no arguable point was discerned in the intended appeal, given the applicant's breach of the consent order preceding the lawful exercise of statutory power of sale.
The applicant obtained a loan secured by the suit property; the suit over the chargee's statutory power of sale was compromised by a consent order permitting sale on default. The applicant defaulted, and the property was auctioned to the 2nd respondent on 19th May 2020. On those facts, the court found no arguable point in the intended appeal and, without reaching the nugatory-om limb, dismissed the motion with costs to the 1st respondent.
Legal principles established
#- An applicant under Rule 5(2)(b) must first show the appeal is arguable (not frivolous) and, in addition, that it would be rendered nugatory absent stay; failure on the first limb disposes of the application.
Court orders
#- 1.The Motion dated 24th February 2021 is dismissed
- 2.Costs of the application awarded 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 Nairobi
- H.C.C.C. No. E210 of 2020
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules
Relief refused
#Temporary injunction restraining the 1st respondent from dealing with the suit property pending determination of the intended appeal
No arguable point discerned in the intended appeal
Stay of execution and implementation of the High Court ruling of 5th February 2021 finding the suit res judicata
Having failed the first limb of the Rule 5(2)(b) test, the court did not reach the nugatory-om limb
Costs
The Motion dated 24th February, 2021 has no merit and is 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.
For an applicant to succeed in an application brought under rule 5 (2) (b) of the rules of this Court he must, firstly, demonstrate that the appeal, or intended appeal, is arguable, which is the same as saying that it is not frivolous.
An applicant who succeeds on that first principle must, in addition, show that the appeal would be rendered nugatory absent stay
The Motion dated 24th February, 2021 has no merit and is dismissed with costs to the 1st respondent.
Issues in the judgment
#Internal inconsistency in the date of the public auction: the introductory passage refers to an auction on 19th May, 2000 while the remainder of the judgment consistently states 19th May, 2020.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Samy Ghannam v SBM Bank Kenya Ltd & 2 others [2021] KECA 373 (KLR)", Case Analysis (2021). Civil Application No. NAI. E055 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/373/eng@2021-07-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.