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Court of AppealDismissedCivil Application Number 301 of 2018· [2019] KECA 693 (KLR)

Darasa Investment Limited v Dubai Bank Kenya Limited (In Liquidation) [2019] KECA 693 (KLR)

Court of Appeal
7 June 2019
1,690 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Court of Appeal refused to pause High Court orders freezing Darasa Investment's assets because freezing alone, without disposal, causes no irreversible harm.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Nairobi (Musinga, Gatembu Kairu and Murgor, JJ.A) delivered on 7 June 2019 in Civil Application No. 301 of 2018. Darasa Investment Limited sought stay of execution, enforcement or implementation of the ruling of the High Court (Tuiyott, J.) of 28 September 2018 in HCCC No. 145 of 2017, which granted Dubai Bank Kenya Limited (in liquidation) orders for tracing and following of Darasa's assets, disclosure of unencumbered assets to the value of Kshs.103,421,770.85, freezing of assets to that value pending trial, backed by the bank's undertaking in damages. The applicant moved under Sections 3A and 3B of the Appellate Jurisdiction Act and Rule 5(2)(b) of the Court of Appeal Rules. The Court applied the settled twin test: the applicant must show an arguable intended appeal and that the appeal will be rendered nugatory absent the orders. The Court found the intended appeal arguable, noting complaints that the Judge failed to apply the principles governing Orders 39 and 40, that no risk of asset removal was shown, and that the Judge dealt prematurely with matters reserved for trial. However, the Court held the nugatory limb unsatisfied: the impugned orders only permit tracing and freezing, not disposal, and the company did not identify the assets or explain how freezing would paralyse its operations. The application was dismissed with no order as to costs.

Key legal issues

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01

Whether the intended appeal was arguable

Holding

The intended appeal was arguable, based on complaints that the Judge failed to apply the legal principles governing Orders 39 and 40, that no risk of asset removal was shown, and that interlocutory orders were made on matters reserved for trial.

Reasoning

The Court assessed the draft memorandum of appeal complaints: the Judge allegedly did not apply the legal principles for Orders 39 and 40 applications, no risk of asset removal from jurisdiction was demonstrated, and interlocutory decisions were made on matters properly reserved for trial. Complaints of this nature, if arguable, satisfy the first limb.

p. 2
02

Whether the intended appeal would be rendered nugatory absent a stay

Holding

The nugatory limb was not satisfied because the impugned orders only permit tracing and freezing of assets, not their disposal, and the applicant did not show how the freezing would paralyse its operations.

Reasoning

The Court distinguished between orders permitting disposal and orders of tracing and freezing. Since the impugned orders do not permit disposal, no irreversible loss was demonstrated. The applicant did not identify the assets, or explain what its operations were or how freezing would affect them, so the second limb of the Rule 5(2)(b) test failed.

p. 2

Legal principles established

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  • To succeed on an application under Rule 5(2)(b), an applicant must demonstrate both that the intended appeal is arguable and that the appeal will be rendered nugatory unless the orders sought are granted.
  • An arguable appeal need not necessarily succeed; it is sufficient that it is deserving of the Court's consideration.
  • Rule 5(2)(b) is a procedural innovation empowering the Court to entertain interlocutory applications for preservation of the subject matter of appeals.

Court orders

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  1. 1.The application for stay of execution pending the hearing and determination of the intended appeal was dismissed
  2. 2.No order as to costs

Authorities

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Legislation

  • Appellate Jurisdiction ActSections 3A, 3B
  • Court of Appeal RulesRule 5(2)(b)
  • Civil Procedure RulesOrders 39 and 40

Cases cited (3)

  • Equity Bank Limited vs. West Link Mbo Limited
    [2013] eKLR
  • Ishmael Kagunyi Thande vs. Housing Finance of Kenya Ltd
    Civil Application No. Nai 157 of 2006
  • Dennis Mogambi Mong’are vs. Attorney General & others
    [2012] eKLR
On appeal from
High Court of Kenya at Nairobi
HCCC No. 145 of 2017
Jurisdiction invoked
Sections 3A and 3B of the Appellate Jurisdiction Act and Rule 5(2)(b) of the Court of Appeal Rules

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, "Darasa Investment Limited v Dubai Bank Kenya Limited (In Liquidation) [2019] KECA 693 (KLR)", Case Analysis (2019). Civil Application Number 301 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/693/eng@2019-06-07

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