Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealDismissedCivil Application No. 154 of 2010

Paramount Universal Bank Limited v Trust Bank Limited & 2 others [2010] KECA 86 (KLR)

Court of Appeal
22 October 2010
1,912 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

#

The Court of Appeal dismissed Paramount Universal Bank's stay application, requiring Kshs.15 million deposits into an interest-earning account pending the fraud appeal's outcome.

What this practically means

#

Executive summary

#
Trust Bank Limited obtained judgment against Paramount Universal Bank Limited, Ajay Shah and Praful Shah for Kshs.3,677,922.50 with compound interest at 25% per annum and costs, on allegations that the two directors fraudulently caused a run on Trust Bank before its closure by siphoning money through seven cheques drawn in favour of Paramount. The trial judge (Lessit, J.) later granted a conditional stay of execution on 5th June 2009, ordering each applicant to deposit Kshs.15 million in court within 30 days. Instead of complying or seeking variation in the High Court, Paramount filed the present notice of motion dated 24th June 2010 under Sections 3A and 3B of the Appellate Jurisdiction Act and Rule 5(2)(b) of the Court of Appeal Rules, seeking a stay of execution, arguing the intended appeal was arguable (on the standard of proof for fraud and compound interest) and that any success would be rendered nugatory because Trust Bank was insolvent, and offering a bank guarantee. The 2nd and 3rd respondents, having filed no application of their own, supported the motion. The 1st respondent opposed, relying on the applicant's earlier undertaking to abide by any conditions, its non-compliance with the 30-day deadline, and its unexplained delay of over a year in approaching this Court. The Court held the intended appeal was arguable but that the nugatory principle was not engaged since the deposit would be paid into court and refundable on success; the unexplained delay and non-compliance weighed against relief. The motion was dismissed, the High Court stay order confirmed but varied so that each of the three parties deposits Kshs.15 million into an interest-earning account in the joint names of the advocates, failing which execution may issue. Costs were awarded to the 1st respondent.

Questions the Court framed

#

The issues the Court set itself to decide, in its own words.

  1. 1.Whether the intended appeal is arguable
  2. 2.Whether the success of the intended appeal, if it succeeds, will be rendered nugatory

Key legal issues

#
01

Arguability of the intended appeal

Holding

The intended appeal is arguable on the standard of proof for fraud and the award of compound interest

Reasoning

The court identified two issues raised in support of the intended appeal - whether the learned Judge applied the correct standard of proof where fraud is pleaded, and whether compound interest should have been ordered - and held both need full ventilation at the hearing. Arguability means only that the points merit a full hearing, not that they will succeed.

p. 3
02

Nugatory value of the appeal if stay is refused

Holding

The nugatory principle is not satisfied because the deposit is to be paid into court, not to the 1st respondent, so the applicant would be refunded if successful

Reasoning

The applicant argued the 1st respondent was insolvent, so payment would be irrecoverable. The court held payment need not be made to the 1st respondent directly; the superior court ordered it paid into court to remain until the intended appeal is determined, so no loss would occur if the appeal succeeded. The court also weighed the applicant's earlier undertaking to abide by conditions and its unexplained delay.

p. 3
03

Exercise of discretion on stay given delay and non-compliance

Holding

The superior court's conditional stay order stands, modified so the deposit earns interest

Reasoning

The applicant accepted before the superior court that it would abide by any condition, then failed to comply within 30 days and waited over a year, until taxation, before approaching the Court of Appeal. That unexplained delay and non-compliance are matters for a fair and just decision. The court confirmed the order but varied it to require payment into an interest-earning account, recognising the applicant's commercial interest in its money earning interest.

p. 3

Legal principles established

#
  • A single judge's ruling of the High Court does not oust the Court of Appeal's original jurisdiction under Rule 5(2)(b) to entertain a stay application
  • An arguable appeal is one that may or may not succeed; arguability alone does not predict the outcome
  • Where the decretal sum is to be paid into court pending appeal, the nugatory principle is not engaged because successful appellants can recover the money; and unexplained delay plus non-compliance with prior orders are relevant to the exercise of the discretion

Court orders

#
  1. 1.The notice of motion dated 24th June, 2010 is dismissed
  2. 2.The order of the superior court made on 5th June, 2009 is confirmed but varied so that the applicant, second and third respondents each deposit Kshs. Fifteen million (15,000,000) into an interest earning bank account in the joint names of the advocates for the first respondent and the applicant, within thirty (30) days of the date of the order, failing which the first respondent shall be at liberty to execute
  3. 3.Costs of the application to be paid by the applicant to the first respondent

The bench

#

One judgment of the whole court — no separate or dissenting opinions.

majority
majority
On appeal from
High Court of Kenya at Nairobi
H.C.C.C. No. 1243 of 2001
Jurisdiction invoked
Sections 3A and 3B of the Appellate Jurisdiction Act and Rule 5(2)(b) of the Court of Appeal Rules

Relief refused

#

Stay of execution of the decree of the superior court

The intended appeal is arguable but the nugatory principle is not satisfied; payment into court protects the applicant, and the unexplained delay and non-compliance with the superior court order weigh against the exercise of discretion

p. 3

Costs

Costs of this application to be paid by the applicant to the first respondent.

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.

The notice of motion dated 24th June, 2010 is dismissed and the order of the superior court made on 5th June, 2009 is confirmed but varied to the extent that the applicant, second and third respondents each to deposit Kshs. Fifteen million (15,000,000) into an interest earning bank account in the joint names of the advocates for the first respondent and the applicant, within thirty (30) days on the date hereof, failing which the first respondent shall be at liberty to execute.
p. 3Final orders - dismissal of stay application and variation of conditional stay
We do have original jurisdiction to determine this application before us, the ruling of the learned Judge of the superior court notwithstanding.
p. 3Original jurisdiction of the Court of Appeal under Rule 5(2)(b)
It is arguable. That does not however mean that it will succeed. All it means is that it may or may not succeed, but those points will need to be heard in full.
p. 3Meaning of an arguable appeal
the delay to file this application, which has not been explained, coupled with the fact that the orders given by the superior court had not been complied with, are matters that must be considered in coming to a fair and just decision on the notice of motion before us.
p. 3Delay and non-compliance as relevant to stay discretion

Issues in the judgment

#
minor

The judge of the superior court is referred to inconsistently within the judgment - 'Lessit, J.' in the header and 'Lesiit, J.' in the body

minor

The decree figure is stated inconsistently - Kshs3,627,922.50 in the narrative and Kshs.3,677,922/50 in the quoted judgment order

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (1)

#

Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

#

Cite this brief

Caselaw, "Paramount Universal Bank Limited v Trust Bank Limited & 2 others [2010] KECA 86 (KLR)", Case Analysis (2010). Civil Application No. 154 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2010/86/eng@2010-10-22

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