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Court of AppealDismissedCivil Application No. NAI. 106 of 2008

Debonair Travel Ltd & another v Mohammmad Hassim Pondor (Suing on behalf of the Internation Air Transport Association: IATA) & 3 others [2011] KECA 103 (KLR)

Court of Appeal
7 October 2011
SBS.E.O. BosirePWP.N. WakiJOJ.W. Onyango Otieno
1,969 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to pause a Kshs.23 million judgment against Debonair Travel because the winning side could easily refund the money if the appeal succeeded.

What this practically means

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Executive summary

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This was an application under rule 5(2)(b) of the Court of Appeal Rules by Debonair Travel Ltd and its Managing Director, Kennedy Gichuha Chege, seeking a stay of a High Court ruling and decree by Warsame J. dated 12th March 2008 in Nairobi HCCC No. 130 of 2006. The High Court had struck out the applicants' joint defence in a claim by two individuals suing on behalf of IATA for Kshs.23,996,791 and US$2,864.52 under a Passenger Sales Agency Agreement of 6th June 2001, and had entered judgment as prayed. The applicants contended they were bound to remit money to the carriers, not IATA, and questioned whether suit could be properly brought through attorneys, citing Kajabi v. Kayanja. The Court of Appeal restated the twin principles governing rule 5(2)(b) applications: the applicant must show the appeal is arguable and that its success will be rendered nugatory without a stay, and must satisfy both. The court found one arguable point sufficed and was satisfied on the first limb. On the second limb, however, the decree was for a liquidated sum and nothing was shown to suggest the respondents, representing several carriers and an insurance company, could not refund the decretal sum if execution issued. The application was accordingly dismissed with costs to the respondents. The decision below was neither affirmed nor reversed; the court merely declined a stay pending appeal.

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' appeal or intended appeal is arguable
  2. 2.Whether the success of the appeal would be rendered nugatory unless a stay of execution is granted

Key legal issues

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01

Arguability of the intended appeal

Holding

The applicants satisfied the first principle; issues arising from the agency agreement and the parties' capacity needed ventilation on appeal.

Reasoning

The court declined to comment on the merits since the application was not the appeal itself, but found from the background facts that there were issues, such as whether the applicant was obliged to remit funds to IATA rather than the carriers, and whether IATA could properly sue through attorneys, that needed ventilation on appeal.

p. 4
02

Whether the appeal would be rendered nugatory without a stay

Holding

The second principle was not satisfied because the decree was for a liquidated sum and the respondents' ability to refund was not impugned.

Reasoning

The decree was for a liquidated sum. The 1st respondent represented several carriers and the 2nd respondent was an insurance company. Nothing was alleged or shown to indicate the respondents could not refund the whole decretal sum if execution issued, so despite the large amounts, nugatory-ness was not demonstrated.

p. 4

Legal principles established

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  • Under rule 5(2)(b), an applicant must satisfy two conditions: that the appeal is arguable, and that it will be rendered nugatory without the stay; both must be met.
  • A single arguable point is sufficient to satisfy the arguability criterion.
  • Where the decree is for a liquidated sum and no evidence is shown that the decree-holder cannot refund, nugatory-ness is not established.

Court orders

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  1. 1.The application dated 22nd May 2008 and filed in court on 23rd May 2008 is dismissed
  2. 2.The respondents shall have the costs of the motion, to be borne by the applicants

The bench

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

SB
majority
PW
majority
JO
majority
On appeal from
High Court of Kenya at Nairobi
H.C.C. No. 130 of 2006
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules

Relief refused

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Stay of execution of the High Court judgment of 12th March 2008

The decree is for a liquidated sum and it was not shown the respondents would be unable to refund the decretal sum if execution issued

p. 4

Costs

The respondents shall have the costs of the motion to be borne by the applicants.

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 any civil proceedings, where a notice of appeal has been lodged in accordance with rule 75, (the court may) order a stay of execution, an injunction or a stay of any further proceedings on such terms as the court may think just.
p. 2Rule 5(2)(b) text
for an applicant to succeed he must show that his appeal or intended appeal is arguable or differently stated, that it is not frivolous
p. 4First principle of rule 5(2)(b)
It is also trite law that for an applicant to succeed he must satisfy both conditions.
p. 4Both limbs must be satisfied
In the result, we dismiss the application dated 22nd May 2008 and filed in court on 23rd May 2008. The respondents shall have the costs of the motion to be borne by the applicants.
p. 4Final orders

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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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, "Debonair Travel Ltd & another v Mohammmad Hassim Pondor (Suing on behalf of the Internation Air Transport Association: IATA) & 3 others [2011] KECA 103 (KLR)", Case Analysis (2011). Civil Application No. NAI. 106 of 2008. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2011/103/eng@2011-10-07

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