Murad Ebrahim Murad & another v Kenya Commercial Bank Limited & another [2018] KECA 124 (KLR)
The bottom line
#The Court of Appeal refused to stop execution of a judgment handing over a Nairobi house, because the appellants could be compensated by the bank if their appeal later succeeded.
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 intended appeal is arguable and not frivolous
- 2.Whether the intended appeal would be rendered nugatory if stay of execution is not granted
Key legal issues
#Whether the intended appeal is arguable
The court gave the applicants the benefit of doubt and found that some, if not all, the issues raised in the draft memorandum of appeal were arguable
The draft memorandum raised 13 grounds challenging the trial court's findings, including the validity of the statutory notices upon which the auction was based, which another judge had declared defective. Citing Joseph Gitahi Gachau, the court held that an arguable appeal is one that is not frivolous and ought to be fully argued, not one that must succeed. The first test was therefore satisfied.
Whether the intended appeal would be rendered nugatory if stay is not granted
The applicants failed to satisfy the nugatory test; the loss of the house through auction was anticipated in a commercial transaction, and the bank was capable of compensating them, while the purchaser had gone 15 years without benefit from her investment
The court weighed both sides of the justice scales. The house was offered as security in a commercial transaction and the loss through auction upon default was anticipated. Most complaints were directed at the bank, which was capable of compensating the applicants if they succeeded. Against that, the 2nd respondent had held judgment for 15 years without any return on her investment, having even been denied mesne profits. The applicants thus failed the second test and the application had to fail.
Legal principles established
#- To succeed on a Rule 5(2)(b) application, an applicant must satisfy both twin principles: that the intended appeal is arguable and that it would be rendered nugatory if the orders sought are not granted
- An arguable appeal need not necessarily succeed; it is one that is not frivolous and ought to be argued fully before the court
- Whether an appeal will be rendered nugatory depends on whether what is sought to be stayed is reversible or, if not reversible, whether damages will reasonably compensate the aggrieved party
Court orders
#- 1.The application for stay of execution pending the lodging, hearing and determination of the intended appeal is dismissed with costs
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.C. No. 525 of 2003
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules
Relief refused
#Stay of execution of the judgment and decree of the High Court pending the intended appeal
The applicants failed to demonstrate that the success of the intended appeal would be rendered nugatory if stay was not granted
Injunction restraining the respondents from occupying, trespassing, evicting, wasting, developing, selling, subdividing or registering any charge or transfer of the suit properties
Both twin principles for relief under Rule 5(2)(b) must be satisfied, and the nugatory prong failed
Costs
The application is dismissed with costs to the respondents
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.
an arguable appeal is not one which must necessarily succeed, but one which ought to be argued fully before the court; one which is not frivolous
whether or not an appeal will be rendered nugatory depends on whether or not what is sought to be stayed if allowed to happen is reversible; or if it is not reversible whether damages will reasonably compensate the party aggrieved
It follows that this application is not for grant, and we order that it be and is hereby dismissed with costs.
Issues in the judgment
#The application record refers to H.C.C.C. No. 525 of 2003 in the heading but the motion text refers to HCCC No. 525 OF 2013, and a judgment date of '19th April 2018 (2017) sic'
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Murad Ebrahim Murad & another v Kenya Commercial Bank Limited & another [2018] KECA 124 (KLR)", Case Analysis (2018). Civil Application No. Nai. 132 of 2018 (UR 111/2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/124/eng@2018-11-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.