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Court of AppealDismissedCivil Application NAI. 73 of 2015 (UR 62/2015)· [2015] KECA 449 (KLR)

Country Motors Limited vTreadsetters Tyre Limited [2015] KECA 449 (KLR)

Court of Appeal
31 July 2015
1,678 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal refused to pause execution of a Kshs.10 million judgment because the money was already safely held in an escrow account.

What this practically means

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Executive summary

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Country Motors Limited applied to the Court of Appeal under Rules 5, 41 and 47 (Rule 5(2)(b)) for a stay of execution of the decree in Milimani H.C. Civil Case No. 157 of 2005, an interim order for release of an attached truck and trailer on running attachment, and a conditional stay requiring security of Kshs.10,000,000 by bankers guarantee. The application targeted the ruling of Havelock, J of 1st April 2014, which declined to set aside a Deputy Registrar's ruling of 12th July 2013 amending warrants of attachment to reflect the reviewed decretal sum, interest and taxed costs. Leave to appeal out of time had been granted conditionally on depositing Kshs.10,000,000 in an escrow account. The respondent filed no replying affidavit but opposed, noting the money would be secured in escrow. Applying the settled twin principles from Ishmael Kagunyi Thande v Housing Finance Kenya Ltd, the court found no arguable appeal: the applicant's stated grievance rested on two undetermined High Court applications unrelated to the grounds in the Notice of Appeal challenging Havelock, J's ruling. On the nugatory limb, the court held the decree was a money decree already safeguarded by the escrow deposit, so a successful appeal would not be rendered nugatory. The single judgment of the court dismissed the application with costs. The application is interlocutory; no decision on the appeal itself was made, and the treatment of the decision below is not applicable.

Key legal issues

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01

Arguability of the intended appeal

Holding

Pendency of two undetermined applications in the High Court does not constitute an arguable appeal; the prayers in the motion were unrelated to the grounds in the Notice of Appeal

Reasoning

The applicant's grievance in the supporting affidavit was that two applications (for variation of the escrow deposit and for stay) remained undetermined in the High Court. Counsel instead attacked Havelock, J's ruling on the Deputy Registrar's power to review the decretal sum. The court found the motion's prayers unrelated to the Notice of Appeal's grounds and expressed skepticism of arguability without saying more.

p. 4
02

Nugatory value of a money decree where the decretal sum is secured

Holding

Where the decretal sum is deposited in an escrow/joint account, a successful appeal will not be rendered nugatory

Reasoning

The court noted the decree was a money decree and that the ordered deposit of Kshs.10,000,000 into a joint account was a sure way of safeguarding the funds pending hearing and determination of the appeal, so the nugatory limb failed.

p. 4

Legal principles established

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  • An applicant under Rule 5(2)(b) must demonstrate both an arguable appeal and that the appeal's success would be rendered nugatory without the stay or injunction sought

Court orders

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  1. 1.The application under Rule 5(2)(b) is dismissed with costs to the respondent

Authorities

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Legislation

  • Court of Appeal RulesRule 5(2)(b)
  • Court of Appeal RulesRule 41
  • Court of Appeal RulesRule 47

Cases cited (3)

  • Ishmael Kagunyi Thande vs Housing Finance Kenya Ltd
    Civil Application No. NAI 157 of 2006 (unreported)
  • Githunguri vs Jimba Credit Corporation Ltd, No. 2
    [1988] KLR 838
  • J. K. Industries Ltd vs Kenya Commercial Bank Ltd
    [1982-1988] KLR
On appeal from
High Court
H.C. Civil Case No. 157 of 2005
Jurisdiction invoked
Rules 5, 41 and 47 of the Court of Appeal Rules (Rule 5(2)(b))

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, "Country Motors Limited vTreadsetters Tyre Limited [2015] KECA 449 (KLR)", Case Analysis (2015). Civil Application NAI. 73 of 2015 (UR 62/2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/449/eng@2015-07-31

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