Case ID:165445

Levnel Enterprises Limited & another v Grofin Sgb Kenya Limited & another [2020] eKLR

Case Metadata

Case Number:

Civil Application 172 of 2020

Parties:

Levnel Enterprises Limited & Fredrick G. Ndegwa v Grofin Sgb Kenya Limited & Antique Auctioneers

Date Delivered:

23 Oct 2020

Case Class:

Civil

Court:

Court of Appeal at Nairobi

Case Action:

Ruling

Judge(s):

Mohammed Abdullahi Warsame, Fatuma sichale, Agnes Kalekye Murgor

Citation:

Levnel Enterprises Limited & another v Grofin Sgb Kenya Limited & another [2020] eKLR

Case History:

Being an application for an injunction pending the hearing and determination of an intended appeal against the Ruling of the High Court of Kenya at Nairobi (Maureen Odero, J) dated 16th June, 2020 in Civil Appeal No. 179 Of 2019

Court Division:

Civil

County:

Nairobi

History Docket No:

Civil Appeal 179 of 2019

History Judges:

Maureen Akinyi Odero

Disclaimer:

The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information

IN THE COURT OF APPEAL

AT NAIROBI

[CORAM: WARSAME, MURGOR & SICHALE, JJ.A]

CIVIL APPLICATION NO. 172 OF 2020

BETWEEN

LEVNEL ENTERPRISES LIMITED....................................................................1

ST

APPLICANT

FREDRICK G. NDEGWA......................................................................................2

ND

APPLICANT

AND

GROFIN SGB KENYA LIMITED.....................................................................

2

ND

RESPONDENT

ANTIQUE AUCTIONEERS..............................................................................3

RD

RESPONDENT

(Being an application for an injunction pending the hearing and determination of an intended appeal

against the Ruling of the High Court of Kenya at Nairobi (Maureen Odero, J) dated 16th June, 2020

in

CIVIL APPEAL NO. 179 OF 2019

**************************

RULING OF THE COURT

1. UPON perusing the Notice of Motion dated

25

th

June, 2020,

said to be brought pursuant to

Article 159 of the Constitution, Rule 5 (2) (b) of the

Court of Appeal Rules and all other enabling provisions of the Law

where the applicants seek, in the main:

“(b) THAT this Honourable Court be pleased to issue orders restraining the Respondents, their workers, agents or anyone acting on their behalf from attaching, transferring, alienating, advertising, selling or in any other way interfering with the property known as L.R NO. SAMURUMWITINGIRI/BLOCK 1/798 or any other property of the Applicants pending the hearing and determination of this Application.

(c) THAT this Honourable Court be pleased to issue orders restraining the Respondents, their workers, agents or anyone acting on their behalf from attaching, transferring, alienating, advertising, selling or in any other way interfering with the properties known as L.R NO. SAMURUMWITINGIRI/BLOCK 1/798 or any other property of the Applicants pending the hearing and determination of the Applicant’s intended appeal”,

from the order/decree of the High Court in Civil Case No. 129 of 2019 delivered by

Odero, J

on

16

th

June, 2020

; and

2. UPON perusing the affidavit of

Fredrick Ndegwa,

the 2

nd

applicant sworn on

25

th

June, 2020

in support of the application; and

3. UPON noting that there was no replying affidavit filed by the respondents; and

4. UPON perusing the applicants’ submissions dated

8

th

July, 2020

where it is submitted

inter alia

that the applicants filed a Notice of Appeal on

23

rd

June,

2020;

that the applicants have an arguable appeal as it seeks to challenge the sale of the charged property on account of failure to serve the statutory notice of sale; that unless injuncted, the respondents shall “

irregularly

” sale the 2

nd

applicant’s family and matrimonial home which the 2

nd

applicant holds with sentimental and family attachments which cannot be compensated by way of damages; and

5. HAVING considered the principles that guides this Court in determination of

Rule 5 (2)(b)

applications as summarized in the decision of

Stanley

Kang’ethe Kinyanjui vs. Tony Keter & 5 Others [2013] eKLR;

and

6. NOTING that the applicants have not demonstrated that they have an arguable appeal which may be rendered nugatory, absent stay, given that the statutory notice was served upon the applicant using the 2

nd

applicant’s postal address and given that the fact that the 2

nd

applicant does not deny indebtedness, save for the alleged “

irregularity of the sale

;”

and

7. GIVEN the fact that it was not established that the respondent, a financial institution will not be able to refund the sum to be recovered, and further bearing in mind that the applicants’ application for injunction was dismissed,

thus the applicants seek to stay a negative order refusing grant of an order of injunction, (See

Kenya Commercial Bank Limited vs. Tamarind Meadows

Limited & 7 others [2016] eKLR ), w

e are not satisfied that the applicants have demonstrated an arguable appeal that will be rendered nugatory, absent stay.

Having reached that conclusion, we make the following orders:

(i) The Notice of Motion dated

25

th

June, 2020

is disallowed.

(ii) The applicants shall bear the costs of the application.

Orders accordingly.

Dated and Delivered at Nairobi this 23

rd

Day of October, 2020.

M. WARSAME

....................................

JUDGE OF APPEAL

A.K. MURGOR

....................................

JUDGE OF APPEAL

F. SICHALE

.....................................

JUDGE OF APPEAL

I certify that this is a true copy of the original.

Signed

DEPUTY REGISTRAR