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Court of AppealOtherCivil Application No. NAI 223 of 1997 (98/97UR)· [1997] KECA 188 (KLR)

United Coreboard Products Ltd & 3 others v Bank of Credit and Commerce International (Overseas) Ltd [1997] KECA 188 (KLR)

Court of Appeal
4 September 1997
ASA. B. Shah
532 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Court of Appeal refused urgent certification because the applicants hid unfavourable facts from the court — candour is mandatory, not optional.

What this practically means

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Executive summary

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This is a ruling by Shah JA, sitting in chambers at Nairobi, on an application dated 28th August 1997 seeking certification of urgency for an intended application for stay of execution of a High Court decree by Mwera J dated 19th May 1995 in H.C.C.C. No. 4875 of 1987, in which United Coreboard Products Ltd and three Varshani applicants sought to restrain the auction of their property by Bank of Credit and Commerce International (Overseas) Ltd. On 29th August 1997 the judge had initially declined certification because the auction was set for 30th August and no three-judge bench could be constituted in time. Delivering his ruling on 4th September 1997, Shah JA declined the certificate of urgency on two grounds. First, the applicants lacked candour: their supporting affidavit mentioned only the advertised sale and omitted the chequered history of the suit, a parallel suit over the same property, a previously struck-out appeal against Mwera J's ruling, and two prior decisions of three-judge benches of the Court of Appeal striking out Notices of Appeal. The judge held it incumbent on applicants to disclose all facts, even unpalatable ones. Second, the relief sought had become moot because the property was sold on 30th August 1997 when no stay was in force, and the applicants had long known of the sale, its terms having been settled by the Senior Deputy Registrar in their presence. The judge also observed that the applicants' counsel, Mr Nabutete, had not been fully briefed by his instructing advocate. No costs order was recorded.

Key legal issues

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01

Duty of full and frank disclosure in ex parte/urgent applications

Holding

The court declined certification because the applicants failed to disclose a parallel suit, a previously struck-out appeal, and a prior bench decision striking out a Notice of Appeal

Reasoning

Shah JA noted the supporting affidavit referred only to the advertised sale and the desire to save the property, omitting the litigation history set out by Pall J, the struck-out appeal against Mwera J's ruling, and two prior decisions of three-judge benches striking out Notices of Appeal. This non-disclosure amounted to a lack of candour disentitling the applicants to urgency certification.

p. 2
02

Mootness of the urgency application

Holding

The urgency lapsed because the property was sold on 30th August 1997 when no stay was in place

Reasoning

The auction the applicants sought to restrain had already taken place on 30th August 1997, at a time when no order for stay of execution of the decree in H.C.C.C. No. 4875 of 1987 existed, and the applicants had long been aware of the impending sale since terms of sale were settled in their presence.

p. 2

Legal principles established

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  • An applicant for a certificate of urgency must fully and candidly disclose all material facts, including adverse prior proceedings, even if unpalatable

Court orders

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  1. 1.Certificate of urgency declined
  2. 2.Application not certified as urgent
On appeal from
High Court
H.C.C.C. 4875 of 1987
Jurisdiction invoked
Application for stay of execution of the High Court decree under the Court of Appeal's appellate jurisdiction (in-chambers application)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "United Coreboard Products Ltd & 3 others v Bank of Credit and Commerce International (Overseas) Ltd [1997] KECA 188 (KLR)", Case Analysis (1997). Civil Application No. NAI 223 of 1997 (98/97UR). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1997/188/eng@1997-09-04

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.