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Court of AppealDismissedCivil Appeal No. 317 of 2010

Marti Telecommunications Ltd v G4s Security Services (K) Limited [2015] KECA 126 (KLR)

High Court of Appeal (Court of Appeal), Nairobi
18 December 2015
1,561 words in judgment
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·~6 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal refused to disturb a High Court judge's orders protecting disputed court-awarded money, reaffirming that judges' discretionary decisions stand unless clearly wrong.

What this practically means

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Executive summary

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This was an appeal by Marti Telecommunications Limited against orders made by the High Court (Okwengu, J.) during the pendency of G4S Security Services' appeal against a subordinate court award of Kshs. 426,816.03. The underlying High Court judgment (Sergon, J.) substituting the award with Kshs. 1,000 in favour of the appellant was not the subject of this appeal. While the stay application was pending, the auctioneer released the execution proceeds to the respondent's advocate by post-dated cheque despite an order of Rawal, J. directing deposit of the proceeds into court. Okwengu, J. found the auctioneer was attempting to circumvent the court order, ordered the advocate to deposit the proceeds forthwith, and extended the stay of execution. The appellant, contending there was no subsisting stay when execution occurred and that the payment was regular, challenged the exercise of discretion on three grounds. The Court of Appeal (Mwilu, Azangalala and J. Mohammed, JJ.A.) applied the settled principles in Mbogo v Shah, holding that an appellate court will not interfere with the exercise of discretion by an inferior court unless the decision is clearly wrong. The court found a proper factual and lawful basis for the deposit order, held that preservation of property in issue was not merely right but the clear duty of the court, and stated the order would stand even had the respondent lost the appeal. The appeal was dismissed in its entirety with each party bearing its own costs.

Questions the Court framed

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

  1. 1.Whether the High Court (Okwengu, J.) properly exercised its discretion in ordering the respondent's advocate to deposit the proceeds of the post-dated cheque into court and extending the stay of execution
  2. 2.Whether the Court of Appeal should interfere with the exercise of judicial discretion by the High Court

Key legal issues

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01

Whether the Court of Appeal could interfere with the High Court's discretionary order for deposit of the decretal proceeds

Holding

The court found no improper exercise of discretion by Rawal, J. and Okwengu, J.; the order preserving the proceeds of execution was lawful and proper and would not be disturbed.

Reasoning

The court applied the settled principles in Mbogo v Shah that an appellate court will not interfere with a discretionary decision unless it is clearly wrong, based on misdirection or improper considerations. The judge had found the auctioneer was attempting to circumvent a court order by paying through a post-dated cheque. The order was a routine preservation order pending a lawfully pending application. The subsequent success of the respondent's appeal reinforced, but did not depend on, the propriety of the order.

02

Whether the absence of a stay in place at the time of execution entitled the appellant to the proceeds free of the deposit order

Holding

Although there was no stay in place when execution occurred, there was nothing irregular in staying execution and ordering deposit of the proceeds to preserve the subject matter.

Reasoning

The appellant argued that because the earlier stay had lapsed, execution was regular and the deposit order wrongly presupposed blameworthiness. The court held that even if execution was regular, the court was entitled to preserve the proceeds given the auctioneer's breach of the deposit order and the pending stay application. The existence of a decree supported the exercise of discretion, and preservation orders are routinely made in the course of dispensing justice.

p. 3

Legal principles established

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  • An appellate court will not interfere with the exercise of discretion by an inferior court unless satisfied that the decision is clearly wrong because of misdirection, reliance on improper matters, or a wrong conclusion.
  • A court has not only the right but the clear duty to preserve property that is in issue pending the hearing and determination of a pending application or appeal.
  • An order preserving the subject matter of litigation will not be disturbed on appeal even if the party ultimately loses the appeal, provided the discretion was properly exercised.

Court orders

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  1. 1.The appeal is dismissed in its entirety
  2. 2.Each party to bear its own costs of the appeal

The bench

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

Philomena Mbete Mwilu
P. M. MwiluJA
Currently serving
majority
majority
majority
On appeal from
High Court of Kenya at Nairobi
H.C.C.A. No. 686 of 2009
Jurisdiction invoked
Appeal to the Court of Appeal pursuant to leave granted by the High Court on 11th June, 2010

Relief refused

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The appellant's challenge to the order for deposit of the decretal amount and extension of stay made by Okwengu, J.

The court found no improper exercise of discretion; the order was intended to preserve the subject matter pending hearing of the stay application

p. 3

Costs

Each party bears its own costs of 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.

In the result, the appeal is for dismissal in its entirety and we so order. As there indeed was a decree of the subordinate court in existence at the time of execution, we think the appropriate order on costs is that each party bears its own costs of the appeal.
p. 4Final orders - dismissal and costs
it was not only right that the court should attempt to preserve property which was in issue but it was the clear duty of the court to do so
p. 3Duty to preserve the subject matter of litigation
as to do otherwise, would simply be substituting our discretion for that of the High Court
p. 3Limits of appellate interference with discretion
I think it is well settled that this Court will not interfere with the exercise of its discretion by an inferior court unless it is satisfied that its decision is clearly wrong, because it has misdirected itself or it has acted on matters on which it should not have taken into consideration
p. 2Mbogo v Shah principles on appellate interference with discretion

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, "Marti Telecommunications Ltd v G4s Security Services (K) Limited [2015] KECA 126 (KLR)", Case Analysis (2015). Civil Appeal No. 317 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/126/eng@2015-12-18

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