Bontempi Luigi & another v Sharrif Mohamed A. Omar & another [2011] KECA 346 (KLR)
The bottom line
#Kenya's Court of Appeal blocked eviction and property transfers pending appeal, ruling that demanding Shs.15 million as security was effectively a refusal of stay.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the court should grant stay of execution of the ruling and order of Azangalala, J. pending the lodging, hearing and determination of an intended appeal
- 2.Whether the intended appeal is frivolous
- 3.Whether the appeal would be rendered nugatory if stay is not granted
- 4.Whether the conditions for security imposed by the superior court were just and ought to be disturbed
Key legal issues
#Whether the deposit of security of Shs.15,000,000/- ordered by the superior court was a just condition for stay
The condition was onerous, incapable of being satisfied, and unjust because the decree was not strictly a money decree and accounts had first to be taken; it operated as a refusal of stay.
The court held that the decree was not specifically a money decree and the amount payable could only be established after accounts were taken. The 1st applicant derived no income from the vandalized premises, so requiring a large deposit was speculative and pre-emptory. Justice could instead be secured by preserving the suit properties pending appeal.
Whether the intended appeal is frivolous
The intended appeal is not frivolous since findings of fact on disputed issues, the orders for transfer of the properties, the accounts, the alleged cessation of the company and the joinder of the company as 2nd plaintiff are all contentious.
The court observed that the facts on which the suit was based were all controverted by Luigi, and the findings on those disputed facts, the subsequent orders requiring transfer of properties and accounts within limited times, the alleged cessation of the company's operations and the joinder of the company as 2nd plaintiff are all contentious issues for the intended appeal.
Whether the appeal would be rendered nugatory if stay is not granted
If the properties were transferred to the company and the applicants evicted, a successful appeal would be rendered nugatory; substantial loss is prevented by preserving the status quo.
Relying on Mukuma vs. Abuoga, the court found the applicants would suffer substantial loss if evicted from the suit premises. Since the applicants live on plot No. 3104 and Luigi and Claudio are shareholders in the company entitled to a share of the premises, transfer and eviction before appeal would render a successful appeal nugatory.
Whether the application, though directed at the ruling of Azangalala, J., could be treated as one for stay of the judgment of Sergon, J.
Yes. Invoking Article 159(2)(d), the overriding objective in Sections 3A and 3B of the Appellate Jurisdiction Act and the inherent jurisdiction under Rule 1(3), the court treated the application as one for stay of the judgment and decree of Sergon, J. pending appeal.
The court noted it was improbable the applicants would file an appeal against a ruling relating only to execution of a decree. Since they had filed a notice of appeal against the judgment of Sergon, J., the substantive application was for stay pending that appeal, and procedural technicality would not defeat the application.
Legal principles established
#- Substantial loss has to be prevented by preserving the status quo, as such loss would render an appeal nugatory.
- An applicant for stay under Rule 5(2)(b) must satisfy the court that the intended appeal is not frivolous and that, unless stay is granted, the appeal if successful would be rendered nugatory.
- A condition for security that is beyond the applicant's means and unjustified where the decree is not a money decree amounts to a refusal of stay and is improper.
Court orders
#- 1.The application treated as one for stay of execution of the judgment and decree of Sergon, J. delivered on 26th July, 2007 pending appeal
- 2.Execution of the judgment of the superior court (Sergon, J.) delivered on 26th July, 2007 and subsequent orders made on 6th November, 2007 requiring the applicants to give vacant possession of plot Nos. 3074 and 3104 and also to give accounts are stayed pending appeal
- 3.The applicants are restrained from transferring, charging or in any other manner whatsoever dealing with the suit properties, namely, plot Nos. 3043, 3044, 3045, 3104 and 3074 pending the determination of the appeal
- 4.Costs of the application shall be in the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- H.C.C.C. No. 255 of 1995
- Jurisdiction invoked
- Rule 5(2)(b) and Rule 1(3) of the Court of Appeal Rules; Sections 3A and 3B of the Appellate Jurisdiction Act; Article 159(2)(d) of the Constitution
Relief refused
#Unconditional stay without any restraint on the suit properties
The court preserved the respondents' position by imposing an injunction against dealing with the suit properties pending appeal
Costs
Costs of the application shall be in the appeal.
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 execution of the judgment of the superior court (Sergon, J.) delivered on 26 th July, 2007 and subsequent orders made on 6th November, 2007 requiring the applicants to give vacant possession of plot Nos. 3074 and 3104 and also to give accounts are stayed pending appeal from the said judgment
hereby restrained from transferring, charging or in any other manner whatsoever dealing with the suit properties, namely, plot Nos. 3043, 3044, 3045, 3104 and 3074 pending the determination of the appeal
As this Court said in Mukuma vs. Abuoga [1988] KLR 645 substantial loss has to be prevented by preserving the status quo as such loss would render the appeal nugatory.
It seems that the order for deposit of such a large sum of money was both speculative and pre-emptory and was tantamount to refusal of stay.
Costs of the application shall be in the appeal. Orders accordingly.
Issues in the judgment
#The judgment inconsistently identifies the judge who delivered the 2007 judgment, first referring to the judgment of the superior court without naming the judge, then attributing it to Sergon, J.
The judgment inconsistently renders plot No. 3104 as '3014' in one passage.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Bontempi Luigi & another v Sharrif Mohamed A. Omar & another [2011] KECA 346 (KLR)", Case Analysis (2011). Civil Application No. Nai. 267 of 2009 (UR. 185/2009). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2011/346/eng@2011-03-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.