Automated Summary
Key Facts
The case involves Julius Kipkosgei Yator (appellant) challenging the legality of a property charge by Kenya Commercial Bank (2nd respondent) on matrimonial property owned by his wife, Beatrice Cherono (1st respondent). The appellant argued the charge was invalid due to lack of spousal consent under Nandi customary law, while the bank contended the motion for injunction failed due to discrepancies in property numbers (LR No Nandi/Kapsabet municipality/1181/504 vs. LR No 1181/504) and claimed the properties were distinct. The court ruled that the motion was based on a different property and struck it out with costs to the bank.
Issues
- The court identified a critical discrepancy between the property numbers cited in the applicant's motion (Nandi/Kapsabet municipality/118/504) and the charged property (LR No 1181/504). This inconsistency rendered the injunction request ineffective, as it would not prevent the sale of the correct property.
- The court considered whether the applicant (Julius Kipkosgei Yator) satisfied the legal criteria for granting a temporary injunction pending the hearing of his appeal. Key factors included the arguability of the appeal, potential hardship, irreparable injury, and the balance of convenience. The ruling emphasized that the injunction would be futile due to discrepancies in property references.
Holdings
The court dismissed the application for a temporary injunction pending appeal, finding that the applicant failed to meet the necessary threshold. The court noted discrepancies in the property references and determined that granting the injunction would be futile as it would not prevent the sale of the charged property.
Remedies
- Interim orders are discharged as part of the ruling.
- Costs of the application are awarded to the 2nd respondent.
- The motion dated May 24, 2022 is struck out with costs to the 2nd respondent and interim orders discharged.
Legal Principles
The court applied the principles for granting a temporary injunction pending appeal as outlined in Patricia Njeri and 3 others v National Museum of Kenya [2004] eKLR. These include: (i) the appeal must not be frivolous; (ii) refusal should not cause greater hardship than the injunction would avoid; (iii) the applicant must show the appeal would not be nugatory without the injunction; (iv) a prima facie case with a probability of success must be demonstrated; (v) irreparable injury must be shown if the injunction is refused; and (vi) the balance of convenience must favor the applicant.
Precedent Name
- Patricia Njeri and 3 others v National Museum of Kenya
- Goefrrey Kinuthia Mungai and another v Progressive Credit Limited
- Kadzo Mkutano v Mukutano Mwamboje Kadosho and 2 others
- Mugo Muiru Investments Limited v EWB and 2 others
- Quantum Petroleum Limited v Diamond Trust Bank Kenya Ltd
Judge Name
MN MWANYALE
Passage Text
- 17. The principles for grant of temporary injunction pending appeal were set out in the case of Patricia Njeri and 3 others v National Museum of Kenya [2004] eKLR. They include: (a) an order of injunction pending appeal is discretionary which will be exercised against an applicant whose appeal is not frivolous; (b) The discretion should be refused where it would inflict greater hardship than it would avoid; (c) The applicant must show that to refuse the injunction would render the appeal nugatory; (d) The applicant must present a prima facie case with a probability of success; (e) The applicant must demonstrate that they will suffer irreparable injury if a temporary injunction is not granted; and (f) The applicant must show that the balance of convenience tilts in their favour.
- iii) That pending the hearing and determination of this appeal, a temporary injunction be and is hereby issued against the 2nd defendant/respondent whether by themselves, their servants, employees or agents from selling of charged property LR No Nandi/Kapsabet municipality /1181/504 through public auction scheduled for May 25, 2022 or any other day.
- 21. In view of the above, granting orders sought would be an exercise in futility. In other words granting a temporary injunction pending appeal over property Nandi/Kapsabet municipality/118/504 will not deter the 2nd respondent from proceeding with the sale by public auction over property LR No 1181/504.