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Court of AppealPartially AllowedCivil Application No. 328 of 2009

CFC Financial Services Limited v Juja Road Fancy Store Limited [2010] KECA 425 (KLR)

Court of Appeal of Kenya
5 February 2010
746 words in judgment
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The bottom line

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Kenya's Court of Appeal stopped jail-bound contempt proceedings against a company's officers, confirming a stay where an appeal raised arguable points.

What this practically means

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Executive summary

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This was a single-judge-application motion under Rule 5(2)(b) of the Court of Appeal Rules seeking stay of execution and further proceedings in an intended appeal against a ruling of Khaminwa, J of the High Court at Nairobi (Milimani Commercial Court) in H.C. C.C. No. 331 of 2008 dated 6th February 2009. The underlying dispute concerned 10,000 shares of ICDC Investments Company Limited which the applicant had purportedly purchased on behalf of the respondent, who denied giving instructions; the High Court order compelled the applicant to reverse and cancel the register entry reflecting the purchase. The applicant delayed filing the motion until 16th November 2009, having first sought stay and leave in the High Court; Khaminwa, J granted leave to appeal on 23rd October 2009 but declined a stay. The Court of Appeal (Omolo, Aganyanya and Nyamu, JJA) held both limbs of the Rule 5(2)(b) test satisfied: the appeal was arguable because reversing register entries and transferring the shares raised arguable points, and the appeal would be rendered nugatory because the respondent had sought committal of the applicant's officers to civil jail for six months for non-compliance. The Court allowed the motion in part, granting stay in terms of prayers 1 and 2, rejected prayers 3 and 4, and ordered costs of the motion to be in the appeal. The judgment reiterates that an arguable appeal need not be one that will succeed.

Questions the Court framed

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

  1. 1.Whether the intended appeal is arguable
  2. 2.Whether the intended appeal would be rendered nugatory if the stay is not granted

Key legal issues

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01

Whether the intended appeal is arguable under Rule 5(2)(b)

Holding

The Court found the appeal arguable because the order required reversal and cancellation of register entries in shares, which raised arguable points even if the applicant acted without authority.

Reasoning

The applicant was required to reverse and cancel the entry reflecting the purchase of 10,000 shares of ICDC Investments Company Limited registered in the respondent's name. The Court considered that reversing the entries and transferring shares to someone else raised arguable points, noting the respondent had not sought refund of the purchase money. Arguability does not require the appeal to ultimately succeed.

p. 1
02

Whether the appeal would be rendered nugatory absent a stay

Holding

The nugatory test was satisfied because the respondent had applied to commit officers of the applicant to civil jail for six months for non-compliance, and if committed, a successful appeal would be rendered nugatory.

Reasoning

The respondent had made an application in the superior court for committal of certain officers of the applicant to civil jail for six months for failure to comply with the order of 6th February 2009. If those officers were committed and the appeal eventually succeeded, the success would have been rendered nugatory. Both requirements of Rule 5(2)(b) were therefore satisfied.

p. 2

Legal principles established

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  • An arguable appeal is not one that must succeed; it suffices that the appeal raises arguable points.

Court orders

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  1. 1.Order of stay of execution in the terms contained in prayers 1 and 2 of the motion
  2. 2.Costs of the motion to be in the appeal

The bench

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

majority
majority
majority
On appeal from
High Court of Kenya at Nairobi, Milimani Commercial Court
H.C. C.C. No. 331 of 2008
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules

Relief refused

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Prayers 3 and 4 of the notice of motion

The Court saw no reason to grant the additional orders sought and rejected them.

p. 2

Costs

The costs of the motion shall be in the appeal.

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.

The applicant has thus satisfied both requirements for an application under Rule 5 (2) (b) of the Court’s Rules.
p. 2Satisfaction of the twin tests under Rule 5(2)(b)
The Court has repeatedly pointed out that an arguable appeal does not in any way connote an appeal that will or must succeed.
p. 2Meaning of arguable appeal
Accordingly we allow the applicant’s notice of motion dated 13th November, 2009 and lodged in the Court on 16th November, 2009 with the result that there shall be an order of stay in the terms contained in prayers 1 and 2 of the motion.
p. 2Final orders
The costs of the motion shall be in the appeal. Those shall be the orders of the Court.
p. 2Costs order

Issues in the judgment

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minor

The ruling refers to Khaminwa, J with both 'he' and 'she' pronouns: 'Khaminwa, J ruled on that application on 23rd October, 2009. She granted to the applicant leave to appeal' versus earlier 'made by the superior court (Khaminwa, J)'. The gendered reference is internally inconsistent with the earlier description 'the learned Judge’s order'.

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, "CFC Financial Services Limited v Juja Road Fancy Store Limited [2010] KECA 425 (KLR)", Case Analysis (2010). Civil Application No. 328 of 2009. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2010/425/eng@2010-02-05

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