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Court of AppealDismissedCivil Application No. 108 of 2010

Neville Patrick Gibson Warren & 3 others v Linda Watiri Muriuki [2010] KECA 100 (KLR)

Court of Appeal
1 October 2010
SBS.E.O. BosireAVAlnashir VisramJNJ.G. Nyamu
1,416 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to halt a court-appointed valuation, confirming that consent orders bind parties and stay applications must meet strict twin tests.

What this practically means

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Executive summary

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Four partners of Daly & Figgs Advocates sought, under rule 5(2)(b) of the Court of Appeal Rules, a stay of execution of a High Court order of 23rd March 2010 (Aroni J.) in HCCC No. 611 of 2003, which appointed Melvin Smith, an accountant, as Valuer to determine the share of the respondent, a former partner, following a judgment of 17th December 2007 that the Partnership Deed of 31st October 1990 did not apply to her. The appointment flowed from a consent order entered in December 2003 under which, if the Deed were held inapplicable, the parties would nominate a Valuer whose valuation would be published within sixty days. The applicants had refused to co-operate in the appointment, citing the fundamental alteration in the partnership's composition, an issue the consent order did not address. The Court of Appeal restated the twin rule 5(2)(b) tests - an arguable appeal and nugatory effect - and held that neither was satisfied: the applicants could point to no arguable complaint about the appointment, and the valuation, confined to the period of the respondent's partnership and based on the books of account, could not affect the firm as presently constituted. The court noted the authority of Reliance Bank v Norlake Investments, cited by the applicants' counsel, was of little assistance on these facts. The application dated 10th May 2010 was dismissed with costs on 1st October 2010.

Questions the Court framed

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

  1. 1.Whether the applicants' intended appeal is arguable (not frivolous)
  2. 2.Whether, unless the order of the superior court is stayed, the intended appeal, if successful, would be rendered nugatory

Key legal issues

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01

Whether the intended appeal against the appointment of a Valuer pursuant to a consent order was arguable

Holding

The court was unable to discern any arguable issue: the applicants did not contend the Valuer was unqualified or that the appointment contravened the consent order.

Reasoning

The consent order provided that if the Partnership Deed did not apply, the parties would nominate a Valuer to determine the respondent's share. Judgment having decreed the Deed inapplicable to the respondent, appointment of a Valuer followed naturally from the consent order. The applicants declined to participate but raised no complaint about the appointee's qualifications or the conformity of the appointment with the consent order, and the valuation related only to the period of the respondent's partnership, so it could not prejudice the firm as presently constituted.

p. 3
02

Whether the success of the intended appeal would be rendered nugatory absent a stay

Holding

No nugatory effect was shown: what was awaited was merely the Valuer's report, based on books of account, which could not affect the partnership as presently constituted.

Reasoning

The applicants in substance sought to stay proceedings in the superior court. The valuation was confined to the period when the respondent was a partner, the partners sued were known and none was dead or out of jurisdiction, and the valuation would rest on books of account as the consent order made clear. Preparation of the report therefore could not render any eventual success nugatory.

p. 3

Legal principles established

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  • An applicant under rule 5(2)(b) must show, first, that the appeal or intended appeal is arguable and, secondly, that unless a stay or injunction is granted the appeal's success will be rendered nugatory.
  • Terms of a consent order can only be altered or set aside by consent of the parties, save in certain well known exceptions not present here.

Court orders

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  1. 1.Dismissal of the application dated 10th May 2010
  2. 2.Costs of the application awarded to the respondent

The bench

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

SB
majority
AV
majority
JN
majority
On appeal from
High Court of Kenya at Nairobi
H.C.C.C. No. 611 of 2003
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules

Relief refused

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Stay of execution of the superior court's order of 23rd March 2010 appointing a Valuer

The applicants failed to satisfy both limbs of the rule 5(2)(b) test: the intended appeal was not shown to be arguable and its success would not be rendered nugatory by the valuation proceeding

p. 3

Costs

Application dismissed with costs to the respondent

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

In the result as the applicants have not satisfied the two tests in applications of this nature, we are constrained to and hereby dismiss the application dated 10th May, 2010, with costs.
p. 3Disposition - dismissal of the rule 5(2)(b) application
the applicant is obligated, to show firstly, that his appeal or intended appeal is arguable or put differently, that it is not a frivolous one. Secondly, and in addition, that unless he is granted a stay or injunction as the case may be, his appeal, if it were to eventually succeed, such success will be rendered nugatory.
p. 2The twin tests under rule 5(2)(b)
it is trite law that such terms can only be altered or set aside by consent of the parties except in certain well known exceptions which are not present here.
p. 3Binding nature of consent orders
It is not obvious to us how preparations of the report will render the success of the applicants intended appeal nugatory.
p. 3No nugatory effect demonstrated

Issues in the judgment

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minor

The applicant's name is spelled inconsistently within the judgment ('NEVILLE PATRICK GIBSON WARREN' in the title versus 'Naville Patrick Gibson Warren' in the opening paragraph).

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (25)

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

Cite this brief

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Cite this brief

Caselaw, "Neville Patrick Gibson Warren & 3 others v Linda Watiri Muriuki [2010] KECA 100 (KLR)", Case Analysis (2010). Civil Application No. 108 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2010/100/eng@2010-10-01

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