Tatu City Limited & 3 others v Stephen Jennings & 6 others [2017] KECA 322 (KLR)
The bottom line
#The Court of Appeal kept most interim orders in the Tatu City dispute intact but ruled the companies must continue repaying their overseas loans.
What this practically means
#Executive summary
#Key legal issues
#Interference with discretionary decisions on appeal
The trial court's discretion was judiciously exercised except in respect of the order suspending loan repayments, which was plainly wrong
Applying Mbogo vs Shah and United India Insurance, the Court found the judge considered relevant matters and laid a basis for each conclusion. However, having found the loans required repayment and conditional stoppage only on undertakings that were never given, the judge contradicted himself and took into account the extraneous consideration of prodding the parties to undertake the audit.
Nullity of derivative suit proceedings
The contention that the proceedings were a nullity for want of amendment of pleadings was rejected; pleadings can always be amended
The leave for derivative action was granted on 6th March 2015 and was not challenged on appeal. The same application was the subject of both appeal and cross-appeal, and the trial court also found personal rights to pursue. Since pleadings may be amended for proper adjudication, no nullity arose.
Suspension of loan repayments pending audit
The order suspending repayment of the overseas loans was set aside and substituted with an order that repayments continue
The audit had not been completed within 45 days; the judge had himself found the loans had to be repaid and that prolonged non-repayment would prejudice the companies; no undertaking in damages was given as the judge had required; and only proof of full repayment could justify stoppage of payment.
Legal principles established
#- An appellate court may interfere with a discretionary decision only where the judge misdirected himself, misapprehended the facts, took into account irrelevant matters, failed to take into account relevant matters, or the decision is plainly wrong
- A trial court granting interlocutory injunctions should state and sequentially apply the Giella principles, though omission to expressly state them is not fatal if the substance was addressed
- Final resolution of factual matters at interlocutory stage is a fatal misdirection, but analysis falling short of final resolution leaves facts for trial
Court orders
#- 1.Appeal dismissed in its entirety
- 2.Cross-appeal partially allowed to the limited extent of setting aside the order stopping or suspending repayment of the overseas loans by Tatu and Kofinaf
- 3.Substituted order that the two companies continue making or effecting the said loan repayments
- 4.High Court directed to prioritize the hearing and determination of the pending suit on its merits
- 5.Each party to bear its own costs
- On appeal from
- High Court of Kenya at Nairobi
- Civil Case No. 46 of 2015
- Jurisdiction invoked
- Appellate jurisdiction of the Court of Appeal over an interlocutory appeal from the High Court (including a cross-appeal by respondents)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Stephen Jennings & 4 others v Tatu City Limited & 5 others [2018] KECA 730 (KLR)[2018] KECA 730 (KLR)23 Feb 2018applied
Cite this brief
#Cite this brief
Caselaw, "Tatu City Limited & 3 others v Stephen Jennings & 6 others [2017] KECA 322 (KLR)", Case Analysis (2017). Civil Appeal No. 259 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/322/eng@2017-09-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.