MALINDI AIR SERVICES & ANOTHER vs HALIMA ABDINOOR HASSAN [1998] KECA 111 (KLR)
The bottom line
#Kenya's Court of Appeal halted a High Court order over a leased aircraft, ruling a party who breached the contract and misled the court on oath shouldn't get sweeping interim relief.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the defendants had an arguable intended appeal against the ruling of the superior court
- 2.Whether the intended appeal would become nugatory unless stay of execution of the superior court's order was granted
Key legal issues
#Whether the intended appeal was arguable
The appeal was arguable because the plaintiff conceded breach of the agreement and untruthful affidavit evidence, making it arguable that the superior court should not have granted a mandatory injunction to a party in default and without clean hands.
Counsel for the plaintiff conceded she was in breach, owing roughly US$70,000, and that she had mis-stated on oath that she had paid all instalments diligently. The court held it arguable that a court should not grant a mandatory injunction to a defaulting party who has made untrue statements on oath, and that her case was not clear and incontrovertible as required for such an injunction at the interlocutory stage.
Whether the intended appeal would be rendered nugatory absent a stay
Yes. Given the plaintiff's defaults, dishonoured cheques, lapsed insurance and unpaid repair bills, and the risk that the aircraft could not be recovered, the appeal would be nugatory without a stay.
The plaintiff was in default of at least US$70,000, had issued dishonoured cheques, failed to insure the aircraft and left unpaid repair bills. The aircraft was charged to N.I.C. Bank which might seize and sell it. The plaintiff offered no security for future instalments, no undertaking to pay arrears or insurance, and her conduct showed she was not trustworthy, so the defendants might never recover the aircraft if she succeeded on appeal.
Legal principles established
#- An applicant for stay of execution pending appeal must satisfy the court both that the appeal is arguable and that it would become nugatory if stay is not granted.
- A mandatory injunction at an interlocutory stage is rarely granted and only where the plaintiff's case is clear and incontrovertible; a party in default who comes to court with untruthful statements on oath will not obtain it.
- An interlocutory injunction is granted only where there is complete and utmost good faith and no material untruthfulness by the party seeking the court's assistance.
Court orders
#- 1.Stay of execution of the order of the superior court made on 6th August 1998 until the final determination of the defendants' intended appeal or until further order of the court, whichever is earlier
- 2.The defendants restrained from removing the aircraft from the jurisdiction of the court
- 3.The defendants restrained from selling or otherwise parting with possession of the aircraft during the pendency of their intended appeal
- 4.The defendants to produce the aircraft and place it at the disposal of the court whenever required to do so
- 5.Costs of the notice of motion to abide the result of the intended appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- H.C.C.C. No. 1509 of 1998
- Jurisdiction invoked
- Rules 5(2)(b), 41 and 42 of the Court of Appeal Rules (application for stay of execution and injunction pending intended appeal)
Relief refused
#Alternative prayer compelling the plaintiff to redeliver the aircraft to the defendants
The aircraft was still in the possession of the 1st defendant, so the prayer did not need consideration
Costs
Costs of the notice of motion shall abide by the result of the intended appeal.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
the defendants have to satisfy us that (a) they have an arguable appeal and (b) that in case the defendants succeed in their intended appeal, it would become nugatory unless we order stay of execution of the said ruling and order of the superior court.
A mandatory injunction at an interlocutory stage is rarely granted; only when the plaintiff's case is clear and incontrovertible.
We therefore grant the application and order stay of execution of the said order made on 6th August, 1998 until the final determination of the Defendant's intended appeal or until further order of the court, whichever may be earlier.
Costs of the notice of motion shall abide by the result of the intended appeal.
Issues in the judgment
#The judgment records the plaint as alleging repossession on 2nd July 1992, which the judgment itself notes is an evident typographical error for 1998.
The judgment refers to the affidavit of the 2nd defendant but in one passage describes the same documents as annexed to the affidavit of the 1st Defendant.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "MALINDI AIR SERVICES & ANOTHER vs HALIMA ABDINOOR HASSAN [1998] KECA 111 (KLR)", Case Analysis (1998). Civil Application No. NAI. 202 of 1998 (90/98 UR). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1998/111/eng@1998-09-01
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.