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Court of AppealOtherCivil Application No. 3 of 2006· [2007] KECA 150 (KLR)

TRANSWORLD SAFARIS (K) LIMITED v BHASKER SOMABHAI PATEL & another [2007] KECA 150 (KLR)

Court of Appeal of Kenya
9 November 2007
1,748 words in judgment
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The bottom line

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Kenya's Court of Appeal allowed Transworld Safaris' appeal to proceed but only if it deposited the full judgment amount into a joint interest-earning account within 14 days.

What this practically means

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Executive summary

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Transworld Safaris (K) Limited applied by notice of motion under rule 5(2)(b) of the Court of Appeal Rules for stay of execution of a decree from the High Court at Nairobi (Ransley, J.) in favour of Bhasker and Push Patel, personal representatives of Nekeen Somabhai Patel, who died in a 1994 air traffic accident while supernumerary crew on the applicant's aircraft. The suit had been filed about 5½ years after the accident under leave granted in a miscellaneous application. The respondents opposed, arguing non-compliance with rules 74, 76 and 81, failure to seek stay in the High Court, and that any monies paid could be refunded. The applicant argued the intended appeal was arguable on limitation, contending the High Court was obliged to investigate the leave to file out of time but did not, and that the respondents could not refund execution proceeds. The court applied the settled two-limb test under rule 5(2)(b), as restated in National Industrial Credit Bank Ltd v Wasike: the applicant must show an arguable appeal and that success would be rendered nugatory absent a stay. The court found the limitation issue arguable without deciding it, and observed that for such an application a valid notice of appeal on record suffices. Resolving the nugatory question by a middle course, the court granted a conditional stay: the applicant was to deposit the entire decretal amount into an income-earning bank account in the joint names of counsel within fourteen days, failing which the application would stand dismissed. Costs of the motion were awarded to the respondents against the applicant in any event.

Key legal issues

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01

Whether the intended appeal is arguable

Holding

The intended appeal is arguable on the issue of limitation, the court making no final decision on that aspect at the interlocutory stage.

Reasoning

The trial judge found that the Carriage by Air Act did not apply to air crew, and declined to consider limitation under the Limitation of Actions Act because it had not been pleaded. The applicant argued the judge ought to have investigated the leave granted ex parte to file the suit out of time. The court found the limitation issue sufficient to render the appeal arguable without deciding its merits.

p. 3
02

Whether the appeal would be rendered nugatory if stay is refused

Holding

The court resolved the nugatory point by conditioning the stay on deposit of the entire decretal amount into an interest-earning account in the joint names of counsel, thus securing the respondents' position pending appeal.

Reasoning

The applicant argued the retired respondents could not refund monies paid in execution; the respondents asserted they were still in business and able to refund. Noting that two years had passed since judgment without execution, the court fashioned a conditional stay protecting both sides rather than making a bare finding on refundability.

p. 3

Legal principles established

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  • An applicant under rule 5(2)(b) must demonstrate that the appeal or intended appeal is arguable (not frivolous) and that, if it were to succeed, its results would be rendered nugatory by refusal of the stay.
  • For purposes of a rule 5(2)(b) application, the court need only find a valid notice of appeal on the record; it does not determine the validity of the notice or whether the appeal has been timeously lodged.

Court orders

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  1. 1.Stay of execution of the decree from the judgment of the High Court in Civil Case No. 1221 of 2001, conditional upon the applicant depositing the entire decretal amount into an income-earning bank account in the joint names of the advocates on record for the applicant and the respondents within 14 days
  2. 2.If the applicant fails to satisfy the deposit condition, the application shall stand dismissed
  3. 3.The costs of the motion shall be borne by the applicant in any event

Authorities

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Legislation

  • Court of Appeal RulesRule 5(2)(b)
  • Court of Appeal RulesRules 74, 76 and 81
  • Limitation of Actions ActCap 22
  • Carriage by Air ActNo. 2 of 1993

Cases cited (4)

  • Githunguri vs. Jimba Credit Corporation Ltd (No.2)
    (1988) KLR 838
  • J.K. Industries Ltd vs. Kenya Commercial Bank Limited
    (1982 – 88) 1 KAR 1688
  • Reliance Bank Limited (In liquidation) vs. Norlake Investments Limited
    Civil App. No. Nai. 98 of 2002 (unreported)
  • National Industrial Credit Bank Ltd vs. Aquinas Francis Wasike & Another
    Civil Application No. Nai. 238 of 2005 (unreported)
On appeal from
High Court of Kenya at Nairobi
H.C.C. Suit No. 1221 of 2001
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules

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, "TRANSWORLD SAFARIS (K) LIMITED v BHASKER SOMABHAI PATEL & another [2007] KECA 150 (KLR)", Case Analysis (2007). Civil Application No. 3 of 2006. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2007/150/eng@2007-11-09

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