Savings and Loan Kenya Ltd v Jayanti & Jagdeep Developers Ltd & 2 others [2003] KECA 104 (KLR)
The bottom line
#Kenya's Court of Appeal paused a Kshs.35 million judgment against a lender, because the winning side couldn't refund the money if the appeal succeeded.
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
- 2.Whether the success of the intended appeal would be rendered nugatory if stay is not granted
Key legal issues
#Arguability of the intended appeal
The intended appeal was arguable because the award of general damages for breach of contract was questionable and the applicant may not have been obliged to release the last loan instalment given the borrower's default in interest.
The Court noted that under Dharamshi v Karsan and Habib Zurich Finance (K) Ltd v Lee G. Muthoga, general damages are not properly awardable for breach of contract where losses are quantifiable. The trial judge also found the first respondent in arrears of interest for over two months before the applicant's alleged breach, raising the question whether the applicant was obliged to release the final instalment.
Nugatory value of the intended appeal
The respondents were unlikely to refund the decretal sum if the appeal succeeded, since the first respondent could not even raise about Kshs.12 million to complete construction and the security documents had been returned, leaving the applicant with nothing to look to.
The Court observed that the first respondent needed just under Kshs.12 million to complete the project and could not raise it, making it highly unlikely it could raise the Kshs.35 million decretal sum. The return of the security documents meant the applicant had no recovery avenue. No evidence of the respondents' means was shown.
Legal principles established
#- A rule 5(2)(b) applicant must satisfy two principles: an arguable appeal and that the appeal will be rendered nugatory absent stay.
- General damages cannot properly be awarded for breach of contract where losses are quantifiable.
Court orders
#- 1.Execution of the decree dated 26th September 2002 in Nairobi High Court Civil Case No. 2159 of 2000 stayed pending the determination of the applicant's intended appeal
- 2.Costs of the motion to be in 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. 2159 of 2000
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules
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.
First, an applicant must show that his appeal or intended appeal is arguable or put another way, that it is not frivolous. Second, that the success in that appeal will be rendered nugatory unless he is granted a stay or injunction as the case might be.
as damages arising from a breach of contract are usually quantifiable general damages cannot be awarded in that regard
Accordingly we order that the execution of the decree dated 26th September, 2002 in Nairobi High Court Civil Case No.2159 of 2000, be stayed pending the determination of the applicant's intended appeal against it.
The costs of this motion shall be in the intended appeal. Those are our orders.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Savings and Loan Kenya Ltd v Jayanti & Jagdeep Developers Ltd & 2 others [2003] KECA 104 (KLR)", Case Analysis (2003). Civil Application No. NAI. 327 of 2002. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2003/104/eng@2003-01-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.