Case Trading Company Limited v Vishak Builders Limited & another [2013] KECA 338 (KLR)
The bottom line
#Kenya's Court of Appeal refused to pause a KShs 17.9 million deposit order, confirming that winning a stay application requires proving both an arguable appeal and real risk of loss.
What this practically means
#Executive summary
#Key legal issues
#Whether the intended appeal is arguable
The intended appeal is not frivolous and is arguable; the question whether the 1st respondent owes the applicant the amounts claimed in the counterclaim is arguable.
The court applied the settled Rule 5(2)(b) principles, reiterating that an arguable appeal is not one that must necessarily succeed but one deserving of the court's consideration. On the material on record, the claim in the applicant's defence and counterclaim, that the 1st respondent owed it the amounts claimed, raised an arguable point. The first limb was therefore satisfied.
Whether the intended appeal would be rendered nugatory if stay is refused
The appeal would not be rendered nugatory because the ordered deposit is to be held in an interest earning account in the joint names of both parties' counsel and will be readily available upon determination of the appeal.
The court weighed and balanced the competing claims of the parties, guided by the overriding objective and the oxygen principle as explained in African Safari Club v Safe Rentals. Since the High Court ordered the deposit into a joint interest-bearing account, the funds would be secure, available and earning interest, so refusal of stay would not render a successful appeal nugatory. The second limb failed.
Legal principles established
#- An applicant under Rule 5(2)(b) must satisfy both the arguability limb and the nugatory limb; satisfying only one does not avail the order sought.
- An arguable appeal need not necessarily succeed; it is enough that it is deserving of the court's consideration.
- Whether success of an appeal would be rendered nugatory must be assessed by weighing and balancing the competing claims of the parties within the circumstances of each particular case, guided by the overriding objective.
Court orders
#- 1.Declined to grant an order for stay of execution pending the filing and final determination of the intended appeal
- 2.Declined to grant an order for stay of proceedings pending the filing and final determination of the intended appeal
- 3.Dismissed the application with costs to the 1st respondent
- On appeal from
- High Court of Kenya at Nairobi
- HCCC No. 77 of 2011
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules, together with Sections 3A and 3B of the Appellate Jurisdiction Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Case Trading Company Limited v Vishak Builders Limited & another [2013] KECA 338 (KLR)", Case Analysis (2013). Civil Application 63 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2013/338/eng@2013-04-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.