Marti Telecommunications Ltd v G4s Security Services (K) Limited [2015] KECA 126 (KLR)
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 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.Whether the Court of Appeal should interfere with the exercise of judicial discretion by the High Court
Key legal issues
#Whether the Court of Appeal could interfere with the High Court's discretionary order for deposit of the decretal proceeds
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.
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.
Whether the absence of a stay in place at the time of execution entitled the appellant to the proceeds free of the deposit order
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.
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.
Legal principles established
#- 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
#- 1.The appeal is dismissed in its entirety
- 2.Each party to bear its own costs of 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.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
#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
Costs
Each party bears its own costs of 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.
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.
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
as to do otherwise, would simply be substituting our discretion for that of the High Court
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
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.