Rift Valley Railways (Kenya) Limited v Siewa Furniture and Interior Designers Limited & another [2019] KECA 73 (KLR)
The bottom line
#The Court of Appeal paused a High Court order requiring Rift Valley Railways to deposit Ksh. 57 million as security until its appeal is heard.
What this practically means
#Executive summary
#Key legal issues
#Whether the learned Judge applied the correct test under Order 39 Rules 1 and 5 of the Civil Procedure Rules in ordering deposit of security
The Court found the question whether the correct test was applied - given the Judge's finding of no mischief yet an order for security - to be an arguable point on appeal.
Order 39 Rule 1 covers defendants who abscond or dispose of property with intent to delay or obstruct, and Rule 5 requires satisfaction that the defendant has intent to obstruct or delay execution before security is ordered. The learned Judge did not find such intent on the part of the applicant; her ruling rested on apprehension about the applicant's ability to satisfy a decree. Whether inability to pay, absent proof of mischief, justifies a security order is a triable question meriting consideration on appeal.
Whether the appeal would be rendered nugatory if stay is not granted
Yes - although the committal application was withdrawn, there is no bar to refiling it, creating a real danger of the applicant's officers being jailed pending appeal, an irreversible harm.
The applicant faced a notice of motion for committal to civil jail for contempt of the security order. Though withdrawn, that application could be reinstated. If the officers were incarcerated before the appeal was heard, the harm to their liberty could not be reversed on success, rendering the appeal nugatory. The second limb of the twin principles was therefore satisfied.
Legal principles established
#- An applicant under Rule 5(2)(b) must satisfy both the arguability and the nugatory limbs, and both must exist together before relief is granted.
- An arguable appeal is not one that must succeed, but one that is not frivolous and merits the consideration of the Court.
- Security before judgment under Order 39 requires clear proof of intent to obstruct or delay the court process or execution; mere inability to pay does not suffice.
Court orders
#- 1.Stay of the ruling of the High Court (Ng'etich, J.) dated 25th May 2018 ordering the applicant to deposit Ksh. 57,000,000.00 as security, pending the hearing and determination of the intended appeal
- 2.Costs of the application to the applicant
- On appeal from
- High Court of Kenya at Nairobi (Commercial & Admiralty Division)
- HCCC No. 104 of 2016
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules
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.
- Nahashon Ongwae Nyangau v Republic [2019] KECA 226 (KLR)[2019] KECA 226 (KLR)31 Oct 2019followed
Cite this brief
#Cite this brief
Caselaw, "Rift Valley Railways (Kenya) Limited v Siewa Furniture and Interior Designers Limited & another [2019] KECA 73 (KLR)", Case Analysis (2019). Civil Application No. NAI. 314 of 2018 (UR 252/2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/73/eng@2019-12-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.