Duncan Chengo Bandari v Philomena Gertrude Bandari [2019] KECA 474 (KLR)
The bottom line
#The Court of Appeal refused to stop the sale of a company property because the applicant seeking the stay had behaved dishonestly.
What this practically means
#Executive summary
#Key legal issues
#Whether the intended appeal is arguable
The intended appeal was arguable: whether the High Court, by ordering attachment and sale, revised Sergon, J.'s order that the applicant buy the respondent's shares was a matter fit for ventilation on appeal, even though the applicant filed no memorandum of appeal.
The court reiterated that an arguable ground need not succeed; a single ground that is not frivolous suffices. Although the applicant did not attach a draft memorandum of appeal, the court discerned from the motion a grievance that the property was ordered sold before costs were ascertained by taxation, and that the judge acted as functus officio by varying Sergon, J.'s order. That question was fit for the full court.
Whether the appeal would be rendered nugatory if the property were sold
The applicant failed to demonstrate what loss he would suffer from the sale; alienation of the property would diminish the company's and the shares' value, particularly the respondent's.
The second limb of the rule 5(2)(b) test was not met. The applicant did not show the loss he would suffer if the property were attached and sold. Indeed he had himself sought to dispose of the property through schemes without the respondent's consent, and any alienation from the company would diminish share value, harming the respondent rather than vindicating the applicant.
Whether the applicant deserved the discretionary, equitable relief of stay
The applicant was not entitled to the exercise of the court's discretion because he did not come with clean hands, having devised improper schemes to alienate the company's sole asset and defeat the respondent's share value.
Stay orders being equitable, the clean-hands principle applies. The respondent's affidavit detailed the applicant's attempts to unlawfully dispose of the property in 1995, to defeat her interest by a false adverse-possession claim culminating in default judgment, to obtain a provisional title by misrepresentation, and to frustrate the valuer. Given this conduct, the court found the applicant undeserving of the discretionary relief.
Legal principles established
#- An application for stay under rule 5(2)(b) requires the applicant to show the appeal is arguable and that it would be rendered nugatory if the stay is not granted; a single arguable ground suffices.
- In dealing with a rule 5(2)(b) application the Court of Appeal exercises original and discretionary jurisdiction, which does not constitute an appeal from the judge's discretion.
- Stay of execution orders are discretionary and equitable; an applicant must come to equity with clean hands.
Court orders
#- 1.The application for stay of execution pending the intended appeal is dismissed
- 2.Costs of the application are awarded to the respondent
- On appeal from
- High Court of Kenya at Mombasa
- Winding Up Cause No. 5 of 2006
- Jurisdiction invoked
- Sections 3A and 3B of the Appellate Jurisdiction Act and rules 31, 41, 42(1), 43(1) and 47(1) and (2) of the Court of Appeal Rules (intended appeal under rule 5(2)(b))
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Duncan Chengo Bandari v Philomena Gertrude Bandari [2019] KECA 474 (KLR)", Case Analysis (2019). Civil Appeal (Application) No. 24 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/474/eng@2019-07-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.