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Court of AppealStruck OutCivil Appli. NAI No. 219 of 2007 (134/2007 UR)· [2008] KECA 132 (KLR)

Sonalux Limited & another v Barclays Bank of Kenya Limited & 2 others [2008] KECA 132 (KLR)

Court of Appeal
8 February 2008
SBS.E.O. BosireEOE.O. O'KubasuEGE.M. Githinji
2,240 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed you cannot seek a stay of execution against an order that merely dismisses an application, because there is nothing to execute.

What this practically means

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Executive summary

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This is a single ruling of a three-judge bench of the Court of Appeal at Nairobi (Bosire, O'Kubasu and Githinji, JJA) delivered on 8 February 2008 on the applicants' Notice of Motion under Rule 5(2)(b) of the Court of Appeal Rules seeking stay of execution of a ruling of Kasango, J. dated 29 January 2007 in H.C.C.C. No. 697 of 2005, pending an intended appeal. The underlying ruling had dismissed the applicants' chamber summons seeking injunctive relief restraining Barclays Bank of Kenya and the appointed receiver managers from acting as receivers or exercising the statutory power of sale over L.R. No. 209/601, charged as security for the second applicant's indebtedness. The respondents raised a preliminary objection on competence, contending that a dismissal order contains nothing capable of being stayed. Counsel cited the replying affidavit of Mr. Kisilu and the respondents' advocate's advice to that effect. The Court agreed, reasoning that the ruling of 29 January 2007 ordered no party to do anything, abstain from anything, or pay any sum, and was therefore incapable of execution. Relying on Western College of Arts and Applied Sciences v Oronga and its own recent Rule 5(2)(b) decisions (Nyong'o; Ndungu Kinyanjui; David Thiongo), the Court upheld the preliminary objection and struck out the notice of motion dated 24 August 2007 with costs to the respondents. No stay issued, and the applicants were left free to pursue their intended appeal.

Key legal issues

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01

Whether a stay of execution can lie against an order dismissing an interlocutory application

Holding

No. A dismissal order is not executable; it orders no party to do or refrain from doing anything or to pay any sum, so an application for stay of such an order is incompetent and will be struck out.

Reasoning

The Court traced the order of Kasango, J. and confirmed it was a dismissal of the applicants' chamber summons with costs. Applying Western College of Arts and Applied Sciences v Oronga and its own recent Rule 5(2)(b) jurisprudence (Nyong'o; Ndungu Kinyanjui; David Thiongo), the Court held that where the order sought to be stayed commands nothing, there is nothing arising from it for the Court to enforce or restrain. The applicants' argument that the Court could grant an injunction in its discretion could not cure the absence of anything to stay.

p. 4

Legal principles established

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  • In an application under Rule 5(2)(b) of the Court of Appeal Rules, a stay of execution cannot issue in respect of an order that merely dismisses an application, because such an order directs no party to do anything, refrain from doing anything, or pay any sum - it is incapable of execution and there is nothing to be stayed.

Court orders

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  1. 1.The preliminary objection was upheld
  2. 2.The notice of motion dated 24th August 2007 was struck out with costs to the respondents

Authorities

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Legislation

  • Court of Appeal RulesRule 5(2)(b)
  • Civil Procedure ActSection 3A
  • Civil Procedure RulesOrder L Rule 1
  • Civil Procedure RulesOrder XXXIX Rules 1, 2, 3 and 9
  • Transfer of Property Act (Indian Transfer of Property Act)Sections 52, 69A
  • Companies Act (Cap 486)Sections 353 and 354(1)

Cases cited (5)

  • Giella v Cassman Brown
    [1973] EA 358
  • Western College of Arts and Applied Sciences vs. Oronga
    (1976) KLR 63
  • The Hon. Peter Anyang' Nyongo' & 2 others vs. The Minister for Finance & Another
    Civil Application No. NAI. 273 of 2007 (unreported)
  • Ndungu Kinyanjui vs. Kibichoi Kugeria Services & Another
    Civil Application No. NAI 79 of 2007 (unreported)
  • David Thiongo T/A Welcome General Stores vs. Market Fancy Emporium
    Civil Application No. Nai. 47 of 2007 (unreported)
On appeal from
High Court of Kenya at Nairobi, Milimani Commercial Court and Tax Division
H.C.C.C. No. 697 of 2005
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, "Sonalux Limited & another v Barclays Bank of Kenya Limited & 2 others [2008] KECA 132 (KLR)", Case Analysis (2008). Civil Appli. NAI No. 219 of 2007 (134/2007 UR). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2008/132/eng@2008-02-08

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