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Court of AppealPartially AllowedCivil Appli. Nai 136 of 2007 (UR 89/2007)· [2007] KECA 69 (KLR)

SURJIT SINGH & another v CALTEX OIL (KENYA) LTD [2007] KECA 69 (KLR)

Court of Appeal of Kenya
5 October 2007
2,095 words in judgment
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The bottom line

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Kenya's Court of Appeal paused a Ksh.18.9 million judgment against the Singhs, but only because they deposited Ksh.5.2 million as security within 21 days.

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, Githinji and Onyango Otieno, JJA) dated 5 October 2007 on a notice of motion dated 11 June 2007 under rule 5(2)(b) of the Court of Appeal Rules. Surjit Singh and Malkiat Singh sought a stay of execution, pending an intended appeal, of the ruling of the High Court (Mutungi J) dated 30 November 2006 and delivered on 11 December 2006 in HCCC No. 500 of 2001. That ruling dismissed the applicants' chamber summons seeking to set aside the judgment of Emukule J of 22 November 2004 awarding Caltex Oil (Kenya) Ltd about Ksh.18.9 million for goods sold and delivered, dishonoured cheques and bank charges. Caltex opposed, invoking Kenya Shell Ltd v Kibiru that payment of a money decree does not render an appeal nugatory, and noting that no security had been offered. The Court restated the settled two-limb test from Reliance Bank Ltd v Norlake Investments Ltd: the intended appeal must be arguable, and it must be rendered nugatory if stay is refused. It found arguable the question whether the issue of service of the hearing notice on the applicants was res judicata when raised before Mutungi J. On the second limb it held that, in substantial money decrees, the court qualifies the usual Kenya Shell principle and considers the interests of justice where refusal would cause undue hardship even though the respondent can repay; the respondent's counsel did not directly answer the claim that payment would ruin the applicants' business. Weighing the parties' positions, the Court allowed the application conditional on the deposit of Ksh.5,200,000 into a joint interest-earning account of both advocates within 21 days, failing which the stay would lapse and the motion stand dismissed, with a 21-day stay to enable compliance. No order as to costs was made.

Key legal issues

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01

Whether the intended appeal is arguable

Holding

The intended appeal is arguable: whether the question of service of the hearing notice on the applicants, raised in their application to set aside the judgment of Emukule J, was res judicata when it came before Mutungi J is a point that must be ventilated in the intended appeal.

Reasoning

Applying the settled two-limb test for rule 5(2)(b) applications, the Court did not decide the res judicata question but found that the applicants' contention - that the issue whether they were served with the hearing notice was res judicata when raised before Mutungi J - was a point fit for ventilation in the intended appeal. Counsel for the applicants submitted the point was arguable; the respondent's assertion that the advocates were in court and cross-examined witnesses did not persuade the Court to the contrary. An arguable point suffices; the Court expressed no final view on its merits.

p. 3
02

Whether the intended appeal would be rendered nugatory if stay is refused

Holding

In substantial money decrees the court qualifies the usual principle that a money decree is not nugatory so long as the respondent can repay; refusal of stay on the ground of monetary compensability alone must yield where undue hardship would be caused.

Reasoning

The respondent relied on Kenya Shell Ltd v Kibiru, where Platt Ag JA stated it is not normal for a money decree to be rendered nugatory by payment. The Court held that approach was revisited and qualified in Oraro & Rachier, Clarkson and Trust Bank: where a judgment debtor is adjudged to settle a substantial sum, the court must consider the interests of justice where refusal would cause undue hardship even though the respondent is capable of repaying. Mr Odunga argued the award was too large and could ruin the applicants' business; Mr Amin did not directly respond to that argument.

p. 4
03

Whether the stay should be granted subject to conditions (security)

Holding

The Court granted the stay subject to security: the applicants were to deposit Ksh.5,200,000 into an interest-earning account in the joint names of both advocates within 21 days, failing which the stay would lapse and the motion stand dismissed.

Reasoning

Having found both limbs of the test satisfied in principle, the Court weighed the parties' positions rather than granting an unconditional stay or refusing outright. It balanced the applicants' claim that payment of the large decretal sum before the appeal would destroy their business against the respondent's entitlement to its judgment, conditioning the stay on a partial deposit held in a joint interest-earning account. This protected both sides: the respondent obtained tangible security while the applicants preserved working capital pending the appeal, with a 21-day window to comply.

p. 4

Legal principles established

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  • An applicant under rule 5(2)(b) of the Court of Appeal Rules must first satisfy the court that the appeal or intended appeal is arguable, that is, not frivolous.
  • The applicant must further satisfy the court that, if the stay or injunction sought is not granted, the appeal or intended appeal, if successful, would be rendered nugatory by the refusal.
  • In cases involving a substantial money decree, the court qualifies the usual principle that a money decree cannot render an intended appeal nugatory so long as the respondent can repay; it must consider the interests of justice where refusal of the stay would cause undue hardship, even though the decretal sum is monetarily recoverable.

Court orders

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  1. 1.Stay of execution of the order and ruling of the superior court (Mutungi J) dated 30th November 2006 but delivered on 11th December 2006 granted, subject to the applicants depositing Ksh.5,200,000 into an interest-earning bank account in the names of the advocates for the applicants and the advocates for the respondent within 21 days of the date of the ruling.
  2. 2.In default of the deposit within 21 days, execution shall not be stayed and the application dated 11th June 2007 stands dismissed.
  3. 3.Stay of execution granted for a period of 21 days from the date of the ruling to enable compliance with the deposit order.

Authorities

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Legislation

  • Court of Appeal RulesRule 5(2)(b)
  • Civil Procedure RulesOrder 6 rule 13(1)(d)
  • Civil Procedure RulesOrder 9B rule 8

Cases cited (5)

  • Kenya Shell Ltd vs. Kibiru and another
    [1988-1989] EA 226
  • Reliance Bank Ltd. (In Liquidation) vs. Norlake Investments Ltd
    Civil Application No. Nai. 93 of 2002 (unreported)
  • Oraro & Rachier Advocates vs. Cooperative Bank of Kenya Ltd
    Civil Application No. Nai. 358 of 1999 (unreported)
  • Clarkson (Insurance Brokers) Ltd vs. South Coast Fitness
    Civil Application No. Nai. 204 of 1995 (unreported)
  • Trust Bank Ltd & Another vs. Investech Bank Ltd. & 3 Others
    Civil Application No. Nai. 258 & 315 of 1999 (unreported)
On appeal from
High Court of Kenya at Milimani Commercial Courts, Nairobi
H.C.C.C No. 500 of 2001
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules - application for stay of execution pending the filing, hearing and determination of an intended appeal

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "SURJIT SINGH & another v CALTEX OIL (KENYA) LTD [2007] KECA 69 (KLR)", Case Analysis (2007). Civil Appli. Nai 136 of 2007 (UR 89/2007). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2007/69/eng@2007-10-05

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