GEOFFREY ORAO OBURA v MARTHA KARAMBU KOOME [2000] KECA 386 (KLR)
The bottom line
#Kenya's Court of Appeal paused a KSh 3 million judgment against an advocate, but only on condition he deposit the money in a joint account within 30 days.
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 intended appeal is arguable or at least not frivolous
- 2.Whether the intended appeal would be rendered nugatory if stay of execution is not granted
- 3.Whether the respondent had waived her right to pursue the professional undertaking and is estopped from pursuing an action against the applicant
Key legal issues
#What principles govern the Court of Appeal's jurisdiction to grant a stay of execution under rule 5(2)(b)?
The twin principles are settled: the intended appeal must be arguable or at least not frivolous, and the court must guard against the appeal being rendered nugatory if stay is not granted.
The court restated the long-standing two-limb test governing its discretion under rule 5(2)(b), citing Stanley Munga Githunguri v Jimba Credit Corporation Ltd. First, the intended appeal must be arguable or at least not frivolous; second, the court must guard against the appeal being rendered nugatory if stay is refused. The court then exercised that discretion by moulding the relief: rather than grant an unconditional stay or refuse one, it attached a condition securing the disputed sum so that neither party's position would deteriorate pending the appeal.
Whether the nugatory risk was answered by the existing security arrangement.
The nugatory aspect was taken care of by the superior court's stay order requiring the money to be deposited in an interest-earning account in the joint names of both counsel; the Court of Appeal likewise conditioned its stay on a deposit preserving both parties' interests.
Counsel for the respondent pointed out that the apprehension that Daima Bank, 'vulnerable in the present economic climate', might be unable to refund the money if the appeal succeeded had already been addressed by the superior court's order that the money be deposited in an interest-earning account in the joint names of both counsel. The court accepted that this answered the nugatory concern and, adopting the same mechanism, conditioned its own stay on a deposit of Shs.3,000,000 within thirty days, failing which the stay would lapse.
Whether the intended appeal was arguable, including the waiver/estoppel ground.
The court did not find the intended appeal unarguable; it considered the applicant's admission and the waiver/estoppel submission but left those matters to be canvassed in the appeal.
The applicant relied on the earlier finding that his intended appeal was not frivolous and contended that the respondent had waived her right to enforce the undertaking by leading him to sue his former clients, Halai Developers Ltd, in H.C.C.C No. 2361 of 1997, still pending. The court noted his affidavit admission that he gave the undertaking but that his client did not put him in funds, declined to say much at the interlocutory stage, and held that the point would be canvassed in the appeal; it did not find the appeal unarguable.
What is the effect of the final judgment entered for non-compliance with the order to honour the undertaking?
A final judgment stands against the applicant; his complaint of denial of a proper hearing could be pursued through the intended appeal, since success would return him to the superior court.
The court observed that final judgment had been entered against the applicant following his non-compliance with the order to make good the undertaking. To the complaint, advanced in the earlier application, that he had not been given a proper opportunity of canvassing his defence, the court answered that success in the intended appeal would return him to the superior court to be heard; but as matters stood there was a judgment against him, which supported preserving the position through a conditional stay rather than an unconditional one.
Legal principles established
#- On an application for stay of execution under rule 5(2)(b) of the Court of Appeal Rules, the applicant must satisfy the twin tests: the intended appeal must be arguable (or at least not frivolous), and the court must guard against the appeal being rendered nugatory if stay is not granted.
- The court may grant a stay subject to conditions, such as deposit of the disputed sum in a joint interest-bearing account, that preserve the interests of both parties pending the appeal.
Court orders
#- 1.Stay of execution of the judgment and decree of the High Court in H.C.C.C No. 473 of 1998 (OS) granted pending the hearing and determination of the intended appeal, on condition that the applicant deposits Shs.3,000,000 in a joint banking account in the names of the advocates of both parties within thirty (30) days
- 2.In default of the deposit, the stay ordered to stand lapsed and the application to stand dismissed with costs
- 3.Costs of the application to be in the 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. 473 of 1998 (OS)
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules (referred to in the ruling as 'the Rules of this Court') - application for stay of execution pending 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.
We therefore grant the stay as sought but on condition that the applicant deposits the sum of Shs.3,000,000/= in a joint banking account in the names of advocates of both parties within thirty (30) days from today's date.
In default of such deposit the stay ordered shall stand lapsed and this application shall stand dismissed with costs. The costs of this application will be in the appeal.
The principles upon which this Court exercises its jurisdiction under rule 5(2) (b) are now well settled; that is that the intended appeal must be an arguable one or at least not a frivolous one and that the Court must guard against the possibility of the appeal being rendered nugatory when heard and the stay is not granted.
We are not saying that there is no arguable appeal. What we say is that if the applicant deposits the sum of Shs.3,000,000/= in an interest bearing account pending the hearing and determination of the appeal the interests of both parties would stand preserved.
The nugatory aspect of this application has therefore been taken care of.
That while it is true I gave a professional undertaking as contained in the letter hereon marked "E" the Respondent herein was fully aware that my then client Halai Developers Ltd did not put me in funds
Issues in the judgment
#The ruling describes Daima Bank as 'the respondent herein' when recounting the earlier application, although the respondent named in this cause is Martha Karambu Koome; Daima Bank is the bank to which the professional undertaking was to be paid.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "GEOFFREY ORAO OBURA v MARTHA KARAMBU KOOME [2000] KECA 386 (KLR)", Case Analysis (2000). Civil Application No. NAI. 161 of 2000 (UR 69/2000). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2000/386/eng@2000-06-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.