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Court of AppealOtherCivil Application No. NAI.182 of 1998 (UR.70/98)· [1998] KECA 283 (KLR)

Precise Renovators & Decorators Ltd & Baraka Fabricators v Geofrey Ngugi Gathaiya

Court of Appeal
31 July 1998
Philip Kiptoo TunoiP.K. TunoiASA.B. ShahEOE. Owuor
213 words in judgment
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The bottom line

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Kenya's Court of Appeal let two companies keep disputed vehicles on condition they neither sell nor transfer them while an appeal is prepared.

What this practically means

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Executive summary

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This is a brief interlocutory ruling of the Court of Appeal at Nairobi (Tunoi, Shah and Owuor JJ.A) in a civil application arising from an intended appeal against a ruling of Ole Keiwua J of the High Court dated 25 June 1998 in H.C.C.C. No. 249 of 1998. The applicants, Precise Renovators & Decorators Ltd and Baraka Fabricators, sought relief pending an intended appeal against the High Court ruling. At the hearing, counsel for the applicants, Mr K'Owade, conceded - which the court described as professional and correct - that he could not support the ruling of the learned judge of the superior court. On the strength of that concession, the court did not disturb the High Court decision but issued conservatory orders preserving the subject-matter of the litigation: the vehicles in dispute are to remain in the custody of the applicants, who are restrained from disposing of or otherwise alienating them pending the hearing and determination of the intended appeal. The court further directed that the intended appeal be filed as soon as possible and heard expeditiously. Costs were made costs in the appeal. The ruling is a single judgment of the whole court, with no separate opinions, no cited authorities and no statutory provisions invoked. Its practical significance lies in the court's willingness to preserve suit property in a party's custody subject to a non-alienation undertaking, and in its case-management direction compelling prompt filing and expeditious hearing of the intended appeal.

Key legal issues

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01

Preservation of suit property pending an intended appeal

Holding

The Court ordered the vehicles to remain in the applicants' custody on condition they are not disposed of or alienated, pending the filing and expeditious hearing of the intended appeal.

Reasoning

Counsel for the applicants conceded, in the court's view professionally and correctly, that the High Court ruling of 25 June 1998 could not be supported. On that concession the court granted conservatory preservation of the subject-matter rather than disturbing the ruling, and directed that the intended appeal be filed promptly and heard expeditiously.

p. 2

Legal principles established

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  • Where counsel for an applicant concedes that the ruling below cannot be supported, the Court of Appeal may preserve the subject-matter in the applicant's custody with an undertaking against alienation pending the intended appeal.

Court orders

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  1. 1.The vehicles, the subject-matter of the suit in the Superior Court and the intended appeal, do remain in the custody of the applicants
  2. 2.The applicants shall not dispose of or otherwise alienate the said vehicles pending the hearing and determination of the intended appeal
  3. 3.The intended appeal be filed as soon as possible and be heard expeditiously
  4. 4.Costs will be costs in the appeal
On appeal from
High Court of Kenya at Nairobi
H.C.C.C. No. 249 of 1998 (formerly H.C.C.S. No. 347 of 1998)
Jurisdiction invoked
Inherent/appellate jurisdiction of the Court of Appeal over an intended appeal from the High Court (not expressly stated in the ruling)

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, "Precise Renovators & Decorators Ltd & Baraka Fabricators v Geofrey Ngugi Gathaiya", Case Analysis (1998). Civil Application No. NAI.182 of 1998 (UR.70/98). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1998/283/eng@1998-07-31

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