[2000] KECA 207 (KLR)
The Court found that the applicants' intended appeal raised serious arguable points, particularly regarding alleged collusion between the respondents in the sale of the suit premises. The Court held that Section 69B(2) of the Transfer of Property Act does not, on its face, protect a purchaser who is shown to have...
Source-derived case information.
- Citation
- [2000] KECA 207 (KLR)
- Parties
- Applicant: Mr and Mrs Aftab Ahmed; Respondent: Savings and Loan (K) Limited; Respondent: Mrs Philipa Lakin
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- ? 134 of ??
- Procedural Posture
- Civil Application / Application for Injunction Pending Appeal
- Outcome
- Application for stay of execution granted pending appeal.
- Legal Topics
- Injunction Pending Appeal, Collusion in Property Sale, Mortgagee Sale Irregularity
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mr and Mrs Aftab Ahmed
Applicant
Savings and Loan (K) Limited
Respondent
Mrs Philipa Lakin
Respondent
Procedural Posture
Civil Application / Application for Injunction Pending Appeal
Legal Issues
- 1 Whether the applicants are entitled to an injunction pending appeal to prevent transfer of the suit premises.
- 2 Whether there was collusion between the respondents in the sale of the suit property.
- 3 Whether Section 69B(2) of the Transfer of Property Act applies where collusion is alleged.
Ratio Decidendi
The Court found that the applicants' intended appeal raised serious arguable points, particularly regarding alleged collusion between the respondents in the sale of the suit premises. The Court held that Section 69B(2) of the Transfer of Property Act does not, on its face, protect a purchaser who is shown to have acted in collusion or been party to any irregularity in the acquisition of the property. The Court concluded that unless a stay was granted, the applicants' intended appeal, if successful, would be rendered nugatory. Therefore, the applicants were entitled to a stay in terms of the order sought, with costs to be in the intended appeal.
Court Disposition
Application for stay of execution granted pending appeal.
Orders
- A stay of execution is granted in terms of the order sought in the application.
- Costs of the application to be in the intended appeal.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE COURT OF APPEAL
AT NAIROBI
(CORAM: TUNOI, SHAH & BOSIRE JJ.A.)
CIVIL APPLICATION NO. NAI 134 OF 2000 (61/2000 UR)
BETWEEN
MR AND MRS AFTAB AHMED ................................ APPLICANTS
AND
SAVINGS AND LOAN (K LIMITED ... ................... IST RESPONDENTS
MRS PHILIPA LAKIN ................................ 2ND RESPONDENTS
(An application for an injunction from the ruling of the High Court of Kenya, at Nairobi (Hon. Ransley, Commissioner of Assize) dated 4th May, 2000 in H.C.C. SUIT NO. 479 OF 1999) ****************
RULING OF BOSIRE JA
I have had the advantage of reading in draft the respective rulings of Tunoi and Shah JJ.A on this matter. I agree with the reasoning and conclusions of Tunoi JA. I would only wish to add that the major complaint by the applicants is that there was collusion between the two respondents in the sale of the suit premises to the 2nd respondent. Section 69 B (2) of the Transfer of Property Act, on which the learned Commissioner of Assize based his decision does not, prima facie, cover cases where a purchaser is shown to have acted in collusion with or been party to any irregularity connected with his acquisition of the subject property.
I agree the applicant's intended appeal raises serious arguable points and that unless a stay is granted their intended appeal, if successful will be rendered nugatory. I also agree that the applicants are entitled to a stay in terms of the order sought in their application before us and that the costs of the application be in the intended appeal.
Dated and delivered at Nairobi this 30th day of June, 2000.
S.E.O. BOSIRE
.....................
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR