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Court of AppealAllowedCivil Application No. Nai. 356 of 2000 (174/2000 UR)

Karanja Wagiciengo &another; v Nyakio Ndwiga & 2 others [2000] KECA 126 (KLR)

Court of Appeal
22 December 2000
Philip Kiptoo TunoiP. K. TunoiALA. A. LakhaSBS. E. O. Bosire
830 words in judgment
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The bottom line

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Kenya's Court of Appeal froze KSh 1.35 million in disputed land sale proceeds so an appeal over the property stays meaningful.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Nairobi (Tunoi, Lakha and Bosire, JJ.A.) on a single-judgment application under rule 5(2)(b) of the Court of Appeal Rules for a stay of execution pending an intended appeal against a ruling of Rawal, J. delivered on 5th December 2000 in H.C.C.C. No. 25 of 1996. The High Court had dismissed the applicants' application seeking to compel the second and third respondents to redeem a charge over L.R. No. 209/1498/5 in favour of Barclays Bank of Kenya Limited and to restrain disposal of that property, the respondents having raised a preliminary objection founded on res judicata arising from earlier proceedings, HCCC No. 2972 of 1994 (O.S.). Before the Court of Appeal, the applicants contended that the matter before the High Court was based on new facts, namely the impending sale of the suit property, and that an interlocutory decision in a suit later withdrawn could not operate as res judicata. The court held, without expressing a concluded view on the merits, that the applicants had an arguable appeal and that the appeal would be rendered nugatory without a stay. It granted the application, directing that the disputed sale proceeds of Shs.1,350,000 with accrued interest, held by the first respondent, be paid over to Barclays Bank forthwith, with costs of the application to abide the intended appeal. The decision below was not disturbed; the substantive appeal remains pending.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the applicants have an arguable intended appeal
  2. 2.Whether the intended appeal, if successful, would be rendered nugatory unless a stay of execution is granted

Key legal issues

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01

Arguability of the intended appeal

Holding

The court found the intended appeal arguable, including the question whether an interlocutory decision in a withdrawn suit can operate as res judicata.

Reasoning

The applicants argued the application before the High Court was based on new facts, namely the impending sale of the suit property, so res judicata did not arise; and that an interlocutory decision in HCCC No. 2972 of 1994 (O.S.), a suit later withdrawn and never taken to finality, could not found res judicata. The court, without expressing a concluded view, held the applicants may have an arguable appeal on the material before it.

p. 2
02

Nugatory value of the intended appeal

Holding

The court was satisfied that without a stay the intended appeal, if successful, would be rendered nugatory, and that all parties would suffer grave and irreparable loss.

Reasoning

The court reasoned that if the sale proceeds were not preserved, a successful appeal would be rendered nugatory. It balanced the interests of all parties, finding that the applicants, the respondents and the interested party would all suffer grave and irreparable loss if the application were not granted, and so preserved the funds by directing payment to the chargee bank.

p. 2

Legal principles established

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  • A stay under rule 5(2)(b) is granted where the applicant demonstrates an arguable appeal and that the appeal would be rendered nugatory if the stay is not granted.

Court orders

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  1. 1.Stay of execution granted pending the hearing and determination of the intended appeal
  2. 2.The proceeds of the disputed sale, namely Shs.1,350,000/= together with interest accrued to date, in the possession of the first respondent, to be paid over to the interested party, Barclays Bank of Kenya Limited, forthwith
  3. 3.Costs of the application to be in the intended appeal

The bench

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One judgment of the whole court — no separate or dissenting opinions.

Philip Kiptoo Tunoi
majority
AL
majority
SB
majority
On appeal from
High Court of Kenya at Nairobi
H.C.C.C. No. 25 of 1996
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules (application for stay of execution pending an intended appeal)

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

we are of the view that on the material before us the applicants may have an arguable appeal
p. 2arguability test under rule 5(2)(b)
Further , we are of the opinion that if we do not grant to them a stay their intended appeal, if successful, would be rendered nugatory
p. 2nugatory-value test under rule 5(2)(b)
We would grant the application and order that the proceeds of the disputed sale, namely, Shs.1,350,000/= together with interest accrued to date and now in possession of the first respondent be paid over to the interested party, Barclays Bank of Kenya Limited, forthwith.
p. 2final orders - preservation of sale proceeds
The costs of this application shall be in the intended appeal.
p. 2costs order

Issues in the judgment

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minor

The preliminary objection quoted in the judgment refers to HCCC No. 2972 of 1994 (O.S.) in one line and HCCC No. 2974 (O.S.) in the next, an apparent internal inconsistency in the case number.

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Karanja Wagiciengo &another; v Nyakio Ndwiga & 2 others [2000] KECA 126 (KLR)", Case Analysis (2000). Civil Application No. Nai. 356 of 2000 (174/2000 UR). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2000/126/eng@2000-12-22

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