[2001] KECA 237 (KLR)
The Court of Appeal found that the applicants admitted owing the debt to the respondent and had made no payment or arrangements to pay. The only issue raised was the alleged lack of evidence of posting the statutory notice, which the High Court had already found was posted. The appellate court determined that this...
Source-derived case information.
- Citation
- [2001] KECA 237 (KLR)
- Parties
- Applicant: Ali Mahmud Sheikh Mohamed; Applicant: Salem Sheikh Omar; Applicant: Jamal Mahmud Sheikh Mohamed; Respondent: Kenya Commercial Bank Limited
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Malindi
- Jurisdiction
- Kenya
- Case Number
- ? 403 of 2001
- Procedural Posture
- Injunction Application / Application for Injunction Pending Appeal
- Outcome
- application dismissed
- Legal Topics
- Injunction Pending Appeal, Statutory Notice Requirements, Debt Recovery
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ali Mahmud Sheikh Mohamed
Applicant
Salem Sheikh Omar
Applicant
Jamal Mahmud Sheikh Mohamed
Applicant
Kenya Commercial Bank Limited
Respondent
Procedural Posture
Injunction Application / Application for Injunction Pending Appeal
Legal Issues
- 1 Whether the applicants have demonstrated an arguable appeal to warrant the grant of an injunction pending appeal.
- 2 Whether the absence of evidence of posting the statutory notice invalidates the respondent's right to recover the debt.
Ratio Decidendi
The Court of Appeal found that the applicants admitted owing the debt to the respondent and had made no payment or arrangements to pay. The only issue raised was the alleged lack of evidence of posting the statutory notice, which the High Court had already found was posted. The appellate court determined that this did not constitute an arguable point for the intended appeal. Consequently, the threshold for granting an injunction pending appeal was not met, as there was no merit in the application. The motion was therefore dismissed.
Court Disposition
application dismissed
Orders
- The application for injunction pending appeal is dismissed.
- No order as to costs.
Full Case Text
Judgment text and source record
10 paragraphs
REPUBLIC OF KENYA IN THE COURT OF APPEAL AT MOMBASA CORAM: OMOLO, BOSIRE & OWUOR, JJ.A. CIVIL APPLICATION NO. NAI 403 OF 2001 (214/01 UR) BETWEEN
ALI MAHMUD SHEIKH MOHAMED SALEM SHEIKH OMAR JAMAL MAHMUD SHEIKH MOHAMED ....................... APPLICANTS AND KENYA COMMERCIAL BANK LIMITED ..................... RESPONDENT
(An application for injunction pending appeal against the ruling of the High Court of Kenya at Mombasa (Khaminwa, Comm/Assize) dated 28th September, 2001 in H.C.C.S. NO. 455 OF 2001) *************** RULING OF THE COURT
The applicants admit that money is owed to the respondent bank. They admit that upto now, they have not made any payment and have not made any arrangements to pay the sum owing. All they are saying is that there is no evidence that the three months statutory notice was posted to them. The Commissioner of Assize found it was posted. We do not, on the material before us, think that that is such an arguable point in the intended appeal.The suit was filed on 13th September, 2001. Upto now, no payment has been made. With respect to Mr Wameyo, we do not think that the intended appeal is arguable and that being so, we do not need to consider the second point of whether it would be rendered nugatory. There is no merit in this motion and we order that it be dismissed but we make no order as to the costs thereof.
Dated and delivered at Nairobi this 27th day of November, 2001.
R. S. C. OMOLO JUDGE OF APPEAL
S. E. O. BOSIRE JUDGE OF APPEAL
E. OWUOR JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR