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Court of AppealAllowedCivil Application (Rule 5(2)(b)) arising from Civil Suit No. E480 of 2024

Gacheru v Family Bank Limited (Civil Application E387 of 2024) [2024] KECA 1605 (KLR)

Court of Appeal
8 November 2024
2,122 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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The Court of Appeal stopped a bank from auctioning a family home, holding that unconsented, unregistered additional loans raise serious questions worth a full appeal.

What this practically means

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Executive summary

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The applicant, Simon Kariuki Gacheru, moved the Court of Appeal under Rule 5(2)(b) seeking an injunction restraining the respondent chargee from realizing by public auction LR No. Ruiru/Ruiru East Block 2/28637, his family home, pending an intended appeal against a High Court ruling of 18 July 2024 dismissing his injunction application in Civil Suit No. E480 of 2024. The dispute concerns a charge dated 4 September 2019 securing a Kshs.2,700,000/- facility later repaid in full, and an unregistered letter of offer dated 14 January 2022 for a further Kshs.3,500,000/- advanced to a third-party borrower, on which default triggered a statutory notice. The applicant contended the top-up was made without his knowledge or consent and that no further charge was executed or registered; the respondent maintained the charge was a continuing security and that all statutory notices were duly issued. Applying the twin Rule 5(2)(b) principles, the Court found the grounds on consent, fraud and non-registration of the further charge to be bona fide and not frivolous, and held that a sale transferring the home to third parties, with attendant eviction and relocation, would render the appeal nugatory. The Court allowed the application and ordered that the costs of the application abide the outcome of the appeal. The decision does not disturb the High Court ruling, which will be tested in the intended appeal.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the intended appeal is arguable
  2. 2.Whether, if the injunction is not granted, the appeal will be rendered nugatory

Key legal issues

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01

Arguability of the intended appeal

Holding

The grounds that the top-up facility was advanced without the applicant's knowledge or consent, that fraud was alleged, and that no charge instrument was executed or registered for the additional Kshs.3,500,000/- are not frivolous and deserve ventilation on appeal.

Reasoning

The Court applied the settled test that it is sufficient if a single bona fide arguable ground is raised, and that an arguable appeal is one that is not frivolous and ought to be argued fully before the court. On the material, the questions of consent to the further advance, alleged fraud, and non-registration of a further charge were bona fide issues meriting full argument.

p. 4
02

Whether the appeal would be rendered nugatory

Holding

Because the exercise of the statutory power of sale would dispossess the applicant of his family home and transfer it to third parties, the appeal would be rendered nugatory if it succeeded after the sale.

Reasoning

The Court adopted the broader meaning of 'nugatory' as extending beyond worthless to trifling, and asked whether what is sought to be stayed is reversible or compensable in damages. Since a sale would transfer the property to third parties and the family would suffer eviction and relocation, the harm would not be adequately remedied by damages, satisfying the second limb.

p. 4

Legal principles established

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  • Under Rule 5(2)(b), an applicant must satisfy the twin principles of arguability of the intended appeal and that the appeal will be rendered nugatory if the order is not granted; once both are satisfied, the relief follows.
  • The Rule 5(2)(b) jurisdiction is original, independent and discretionary, but must be exercised judiciously and rationally.
  • An arguable appeal is not one that must necessarily succeed, but one that is not frivolous and ought to be argued fully; a single bona fide arguable ground suffices.
  • On nugatory-ness, where the sale of property will transfer it to third parties and dispossess the aggrieved party of a family home, the appeal will be rendered nugatory even though damages might in theory be available.

Court orders

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  1. 1.Application allowed; injunction restraining realization of the security by public auction pending the filing, hearing and determination of the intended appeal
  2. 2.Costs of the application to abide the outcome of the appeal

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
majority
On appeal from
High Court
Civil Suit No. E480 of 2024
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Our jurisdiction under Rule 5 (2) (b) is original, independent, and discretionary. It must however, be exercised judiciously and rationally, and not out of impulsiveness or sympathy.
p. 4Nature of Rule 5(2)(b) jurisdiction
The discretion of this court under Rule 5(2)(b) to grant a stay or injunction is wide and unfettered provided it is just to do so.
p. 4Width of discretion
In our considered view, these grounds are not frivolous. They deserve a chance to be ventilated on appeal.
p. 4Arguability test applied
It does not only mean worthless, futile or invalid. It also means trifiing as was stated in Reliance Bank Ltd v Norlake Investments Ltd [2002] 1 EA 227 at page 232.
p. 4Meaning of 'nugatory'
In the end, we find that the applicant has satisfied the twin principles as required under Rule 5 (2) (b) of this Court’s rules. We therefore allow the application and order that the costs of the application abide the outcome of the appeal.
p. 4Disposition and costs

Issues in the judgment

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minor

The judgment does not name the respondent in full anywhere in the text; the respondent is referred to only generically and by the deponent Sylvia Wambani, though the firm Mutua Waweru & Company Advocates appears for it.

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, "Gacheru v Family Bank Limited (Civil Application E387 of 2024) [2024] KECA 1605 (KLR)", Case Analysis (2024). Civil Application (Rule 5(2)(b)) arising from Civil Suit No. E480 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1605/eng@2024-11-08

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