DHARMESH KUMAR RAMJI VIRPAL SHAH v INVESTMENTS & MORTGAGE BANK LIMITED & another [2007] KECA 14 (KLR)
The bottom line
#Kenya's Court of Appeal refused to pause a High Court case because the applicant showed the appeal was arguable but not that it would be pointless without a stay.
What this practically means
#Executive summary
#Key legal issues
#Whether the intended appeal is arguable (first limb of the rule 5(2)(b) test).
Yes. The applicant discharged the onus of showing that his intended appeal against the dismissal of his application for production of documents was arguable and not frivolous.
The Court examined the draft Memorandum of Appeal and considered submissions by all counsel. Applying the settled test in Kenya Commercial Bank Ltd v Benjoh Amalgamated Ltd and Silverstein v Chesoni, it held that the applicant had discharged the onus of showing that his intended appeal against the dismissal of his application for production of documents was arguable and not frivolous, the documents being said to be materially relevant to the issues in the suit. Arguability, however, is only the first limb of the rule 5(2)(b) test.
Whether the intended appeal would be rendered nugatory unless stay of proceedings is granted (second limb of the rule 5(2)(b) test).
No. The applicant failed to discharge the onus on the second limb, which is fatal to the application, since both limbs must be satisfied.
Relying on the passage adopted from Silverstein v Chesoni, the Court reasoned that if the stay were withheld the superior court proceedings would be heard and determined, and if the intended appeal later succeeded those proceedings would have been rendered unnecessary; but an appropriate order for costs could remedy that, so the appeal would not be rendered nugatory. The applicant therefore failed to discharge the onus on the second limb, which is fatal to a rule 5(2)(b) application, since both limbs must be satisfied.
Whether a stay of proceedings can be granted where the trial in the superior court has already concluded.
No. Once the trial is concluded and judgment awaited, complaints about the conduct of the proceedings should be raised in an appeal against the final judgment.
The Court was informed from the Bar that the trial in the superior court had concluded and the time for submissions fixed. Given that state of the record, it considered that any other complaints the applicant might raise about the conduct of the proceedings or otherwise could be addressed by way of an appeal against the superior court's final judgment. This reinforced the conclusion that withholding the stay would not render the intended appeal nugatory.
Whether the application was incompetent on the preliminary objection that the applicant's counsel lacked capacity to file it and that it offended Order III Rule 6 of the Civil Procedure Rules.
The Court expressly declined to determine the preliminary objection, holding there was no reason to decide it once the application failed on the merits.
Both counsel for the respondents objected that the applicant's counsel lacked capacity to file the Motion because he had not come on record for the applicant in the superior court, and that the Motion offended Order III Rule 6 of the Civil Procedure Rules and was thus incompetent. The Court chose to dispose of the entire application on the twin test and, the application not being for granting, expressly declined to decide the objection.
Legal principles established
#- In an application for stay of proceedings pending appeal under rule 5(2)(b), an applicant who establishes that the intended appeal is arguable must additionally demonstrate that the appeal will be rendered nugatory unless the stay is granted; arguability alone does not entitle the applicant to a stay.
- Where the trial in the superior court has been concluded, a party's complaints about the conduct of those proceedings are to be pursued by way of appeal against the final judgment rather than by seeking a stay of proceedings.
- The continuation of proceedings in the court below does not by itself render an intended appeal nugatory, since an order for costs can remedy the position if the intended appeal later succeeds.
Court orders
#- 1.The application for stay of proceedings pending the hearing and determination of the intended appeal be and is hereby dismissed with costs.
- On appeal from
- High Court of Kenya at Nairobi (Milimani Commercial Courts)
- H.C.C.C. No. 2335 of 1997
- Jurisdiction invoked
- Rule 5(2)(b) of the Rules of this Court (Court of Appeal Rules) - application for stay of proceedings pending an intended appeal.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "DHARMESH KUMAR RAMJI VIRPAL SHAH v INVESTMENTS & MORTGAGE BANK LIMITED & another [2007] KECA 14 (KLR)", Case Analysis (2007). Civil Appli. Nai 39 of 2007 (UR 26/07). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2007/14/eng@2007-03-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.