B.a.t. Kenya Limited v Mea Limited
The bottom line
#Kenya's Court of Appeal stopped B.A.T. Kenya's attached property from being sold, ruling the parties must keep money deposited in a bank until the appeal is decided.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of the full Court to hear the stay application after the first appeal was struck out
The Court had jurisdiction because a single Judge had already extended time for filing a fresh notice of appeal and record, validating the lodgment of the fresh appeal.
The first appeal, Civil Appeal No. 137 of 1999, was struck out because the decree in the record bore a wrong date contrary to Order XX rule 7(1) of the Civil Procedure Rules. Gicheru, JA, on 24th October 2000, extended time to lodge the notice of appeal already lodged on 2nd October 2000, thereby validating it. With a validly lodged intended appeal before the Court, its jurisdiction under rule 5(2)(b) was engaged.
Whether stay of execution should be granted pending the intended appeal
Stay was granted. The intended appeal was arguable, and although the respondent appeared able to refund, the prior agreement not to execute while the decretal sum sat in an interest-earning account led the Court to preserve the status quo.
The Court found the intended appeal not frivolous but arguable. On the nugatory-ness limb, it noted there was nothing to suggest the respondent could not refund the decretal sum if the appeal succeeded, but the parties had earlier agreed not to execute provided the sum was deposited in an interest-earning account pending appeal. In the peculiar circumstances, the Court preserved the status quo: stay granted, deposit retained, attached property returned.
Propriety of the respondent's mode of executing the decree
The Court criticised the respondent's execution by attachment as contravening Order XXI Rule 18(1), which required notice to show cause, and observed the ethical course was to apply for release of the deposited sum; it reserved that issue for a possible future appeal.
After the first appeal was struck out, the respondent's advocates demanded release of the deposit and, on refusal, executed by attachment and sale despite the decree being over a year old and without the notice to show cause required by Order XXI Rule 18(1). The Court held the more convenient and ethical step was to apply to the superior court for release of the deposited sum, and declined to say more as the issue might arise in another appeal.
Legal principles established
#- An application for stay under rule 5(2)(b) requires the applicant to show an arguable appeal and that the appeal would be rendered nugatory if stay is not granted.
- Execution of a decree more than a year after issuance without the notice required by Order XXI Rule 18(1) of the Civil Procedure Rules is a contravention of that provision.
- Where parties have agreed not to execute a decree provided the decretal sum is deposited in an interest-earning account pending an appeal, the court may preserve that status quo notwithstanding the striking out of the first appeal.
Court orders
#- 1.Execution of the decree in the superior court stayed pending the hearing and determination of the intended appeal
- 2.The sum deposited with Commercial Bank of Africa to remain there until the hearing and determination of the intended appeal, or until further orders
- 3.The moveable property of the applicant already attached in purported execution of the decree be returned to the applicant forthwith
- 4.The respondent to pay the costs of the attachment issued on 4th October, 2000
- 5.Costs of the application to be costs in the intended appeal
- On appeal from
- High Court of Kenya at Nakuru
- H.C.C.C. No. 337 of 1995
- Jurisdiction invoked
- rule 5(2)(b) of the Court of Appeal Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "B.a.t. Kenya Limited v Mea Limited", Case Analysis (2000). Civil Application No. Nai. 288 of 2000 (138/2000 UR). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2000/135/eng@2000-11-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.