Jerusha Naimutie Shani & another v Emmanuel Mathews & another [2020] eKLR Case Summary

Court
Court of Appeal at Nairobi
Category
Civil
Judge(s)
Koome, Gatembu, J. Mohammed, JJ.A
Judgment Date
October 09, 2020
Country
Kenya
Document Type
PDF
Number of Pages
3
Explore the case summary of Jerusha Naimutie Shani & another v Emmanuel Mathews & another [2020] eKLR. Gain insights into the legal arguments, judgments, and implications. Perfect for legal enthusiasts and practitioners.

Case Brief: Jerusha Naimutie Shani & another v Emmanuel Mathews & another [2020] eKLR

1. Case Information:
- Name of the Case: Jerusha Naimutie Shani & Jerusha Semeyian Shani v. Emmanuel Mathews & Kenya Commercial Bank Limited
- Case Number: Civil Application No. NAI E239 of 2020
- Court: Court of Appeal at Nairobi
- Date Delivered: 9th October 2020
- Category of Law: Civil
- Judge(s): Koome, Gatembu, J. Mohammed, JJ.A
- Country: Kenya

2. Questions Presented:
The central legal issues presented before the court involve:
1. Whether the applicants' intended appeal is arguable based on the validity of the statutory notice served by the 2nd respondent and the legality of the transfer of the suit property.
2. Whether the execution of the judgment should be stayed pending the determination of the intended appeal, particularly considering the potential for the appeal to be rendered nugatory if the stay is not granted.

3. Facts of the Case:
The applicants, Jerusha Naimutie Shani and Jerusha Semeyian Shani, are the widows of Melton Ole Shani (the Chargor), who had borrowed money from Kenya Commercial Bank Limited (the 2nd respondent) secured against land parcel L.R. No. Loitoktok/Enkariak-Rongena/243. Following the Chargor's default on loan repayments and subsequent statutory notices served on him, the property was sold at a public auction to Emmanuel Mathews (the 1st respondent) after the Chargor's death in 2001. The 1st respondent filed a suit seeking a permanent injunction against the applicants to prevent them from interfering with the property, which the court ruled in his favor, leading to the applicants filing a Notice of Appeal and the current application for a stay of execution.

4. Procedural History:
The applicants initially filed a notice of motion on 14th August 2020, seeking a stay of execution of the Environment and Land Court's decision made by C. Ochieng, J. on 21st May 2020. They contended that the intended appeal was arguable, citing issues regarding the validity of the statutory notices and the legality of the transfer of the suit property. The 2nd respondent opposed the application, arguing that the appeal lacked merit and that the applicants had not demonstrated that the appeal would be rendered nugatory if the stay was not granted.

5. Analysis:
Rules:
The court considered Rule 5(2)(b) of the Court of Appeal Rules, which requires the applicant to demonstrate two key principles: (1) that the appeal is arguable, and (2) that the appeal would be rendered nugatory if the stay is not granted.

Case Law:
The court referenced *Ishmael Kagunyi Thande v Housing Finance Company Limited Civil Application No. 156 of 2006* to emphasize the principles guiding stay applications. Additionally, it cited *Mbuthia vs Jimba Credit Finance Corporation & Another [1988] eKLR*, which clarified that a chargee is not required to issue multiple statutory notices for a sale, reinforcing the legitimacy of the notice served on the Chargor.

Application:
The court found that the applicants failed to establish that their appeal was arguable, particularly regarding the validity of the statutory notice dated 25th September 2001, which was acknowledged as served. The court also ruled that the applicants did not demonstrate that the intended appeal would be rendered nugatory, as the 2nd respondent was a reputable financial institution capable of compensating the applicants if the appeal succeeded.

6. Conclusion:
The court dismissed the application for a stay of execution, concluding that the applicants did not satisfy the necessary criteria under Rule 5(2)(b). The ruling emphasized the importance of demonstrating both an arguable appeal and the potential for the appeal to be rendered nugatory.

7. Dissent:
There were no dissenting opinions noted in this case.

8. Summary:
The Court of Appeal denied the applicants' request for a stay of execution of the lower court's judgment, emphasizing the lack of an arguable appeal and the absence of evidence that the appeal would be rendered nugatory. This ruling underscores the stringent requirements for obtaining a stay in civil proceedings and highlights the court's reliance on established legal principles regarding statutory notices and the rights of property owners.

Document Summary

Below is the summary preview of this document.

  • Jerusha-Naimutie-Shani--another-v-Emmanuel-Mathews--another-[2020]-eKLR-Case-Summary_1569_0.jpg

This is the end of the summary preview.

Related Documents

View all summaries