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Court of AppealDismissedCivil Application No. Nai. 99 of 2011 (UR. 67/2011)· [2011] KECA 154 (KLR)

Stephen Kipkenda Kiplagat & 2 others v Ufanisi Capital and Credit Limited [2011] KECA 154 (KLR)

Court of Appeal
29 July 2011
EOE. O. O'KubasuPWP. N. WakiAVAlnashir Visram
1,313 words in judgment
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The bottom line

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The Court of Appeal refused to pause a High Court order requiring law firm Kipkenda, Lilan & Koech to deposit Kshs.31.35 million while pursuing an appeal.

What this practically means

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Executive summary

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The applicants, three advocates who had practised as partners in the firm Kipkenda, Lilan & Koech, applied to the Court of Appeal under Rule 5(2)(b) of the Court's Rules and Sections 3A and 3B of the Appellate Jurisdiction Act for a stay of execution and/or stay of proceedings pending an intended appeal against a ruling of the High Court (Dulu, J.) dated 8th April 2011 in H.C.C.C. No. 529 of 2010 (O.S.). The underlying dispute concerned Kshs.115 million the advocates received as stakeholders on the sale of the respondent's property; the respondent alleged that, contrary to its written instructions, the advocates paid Kshs.35 million to Dasahe Ltd. on account of a disputed agency fee. The High Court had directed the advocates to deposit Kshs.31,350,000 in court pending determination of the Originating Summons, applying the Giella v Cassman Brown principles. Before the Court of Appeal, counsel for the applicants argued the intended appeal was arguable and that the deposit order was onerous and would render the appeal nugatory; the respondent, through Hon. R. O. Kwach, maintained the appeal was not arguable and that preservation of the sum was necessary. The Court assumed, without definitive findings, that the appeal was arguable, but held that its success would not be rendered nugatory absent a stay, and that preservation of the subject matter served the interests of justice and both parties. The application was disallowed with costs in the intended appeal.

Key legal issues

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Whether the applicants met the twin test for a stay under Rule 5(2)(b)

Holding

The application was disallowed. The Court assumed the intended appeal was arguable but held that its success would not be rendered nugatory if the stay was refused, as preservation of the disputed sum secured the position of both parties.

Reasoning

The Court weighed the history of the dispute and the High Court ruling directing the advocates to deposit Kshs.31,350,000 pending determination. While prepared to assume arguability without definitive findings, the judges were not persuaded that refusal of the stay would render a successful appeal nugatory. Given the facts, preserving the subject matter - the disputed Kshs.35 million paid to Dasahe Ltd. out of stakeheld client funds - served the interest of justice and benefited both parties. The deposit-order achieves the same protective purpose, making a stay unnecessary.

p. 3

Legal principles established

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  • On a Rule 5(2)(b) application, an applicant must satisfy both limbs: that the intended appeal is arguable and that, absent a stay, its success would be rendered nugatory; where the subject matter of the appeal can be preserved, a stay will be refused in the interest of justice and for the benefit of both parties.

Court orders

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  1. 1.Application for stay of execution and/or stay of proceedings disallowed
  2. 2.Costs shall be in the intended appeal

Authorities

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Legislation

  • Appellate Jurisdiction ActSections 3A and 3B
  • Court of Appeal RulesRule 5(2)(b)

Cases cited (5)

  • Giella vs Cassman Brown & Co. Ltd
    (1973) EA 358
  • Oraro & Rachier, Advocates vs. Co-operative Bank of Kenya Limited
    (1999) EALR 236; Civil Case Number 358 of 1999, Nairobi
  • E. Muriu Kamau, Njoroge Nani Mungai both trading as Muriu Njoroge & Company, Advocates vs. National Bank of Kenya Limited
    C.A No. Nai 258 of 2009
  • Harit Sheth t/a Harit Sheth Advocate vs. Shamas Charania
    Nairobi Civil Application No. Nai. 68 of 2008 (UR 36/2008)
  • Scott & Another vs. Kago
    (1987) KLR 503
On appeal from
High Court of Kenya at Nairobi
H.C.C.C. No. 529 of 2010 (O.S.)
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules and Sections 3A and 3B of the Appellate Jurisdiction Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Stephen Kipkenda Kiplagat & 2 others v Ufanisi Capital and Credit Limited [2011] KECA 154 (KLR)", Case Analysis (2011). Civil Application No. Nai. 99 of 2011 (UR. 67/2011). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2011/154/eng@2011-07-29

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