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Court of AppealOtherCivil Appeal No. 174 of 2013

Praful Shah v Deposit Protection Fund Board as Liquidator of Trust Bank Ltd (In Liquidation) & another [2019] KECA 946 (KLR)

Court of Appeal
22 February 2019
AVAlnashir VisramRNR.N. NambuyeDMD.K. Musinga
1,882 words in judgment
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The bottom line

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Kenya's Court of Appeal ruled that Praful Shah couldn't reverse an earlier choice to have his appeal heard separately, dismissing his application with costs.

What this practically means

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Executive summary

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This ruling of the Court of Appeal (Visram, Nambuye and Musinga, JJ.A.) determined an application by Praful Shah, the appellant in Civil Appeal No. 174 of 2013, seeking adoption of the judgment delivered on 17th June 2016 in the related appeal, Civil Appeal No. 158 of 2013 (Ajay Shah v Deposit Protection Fund Board and Praful Shah), as the judgment of this appeal. Both appeals arose from the same ruling of Ogola, J. of 30th May 2013 in H.C. Misc. Application No. 294 of 2010, in which the High Court granted the Deposit Protection Fund Board, as liquidator of Trust Bank Limited, declarations of fraud, misfeasance and breach of trust against the two Shah brothers and orders to pay over Kshs. 1.5 billion. In the earlier appeal this Court set aside that ruling entirely. Before that appeal was heard, the 1st respondent had proposed consolidating the two appeals or a consent that its outcome bind both; the appellant refused and elected a separate hearing. The Court held that the appellant was thereby estopped from now seeking the benefit of the earlier judgment, relying on the Bamburi Cement election doctrine. Further, the Court declined to adopt a decision that was itself under appeal before the Supreme Court in Petition No. 13 of 2016, since the Supreme Court could reverse it and the Court would have acted in vain. The application was dismissed with costs to the 1st respondent. The decision below was not disturbed; this ruling concerned only the interlocutory adoption application.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the judgment and order in Civil Appeal No. 158 of 2013 should be adopted as the judgment of the Court in this appeal.
  2. 2.Whether the appellant, having rejected consolidation or the application of that judgment to his appeal, is estopped from now seeking to adopt it.
  3. 3.Whether it would be prudent to adopt a decision that is under appeal before the Supreme Court in Petition No. 13 of 2016.

Key legal issues

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01

Doctrine of election and estoppel

Holding

The appellant, having refused consolidation or adoption of the decision in Civil Appeal No. 158 of 2013 and elected a separate hearing, could not resile from that election without any reason.

Reasoning

The 1st respondent had proposed consolidation or a consent that the decision in Appeal No. 158 of 2013 bind this appeal; the appellant flatly refused. On the hearing of his later application he offered no explanation for changing position. The Court adopted the Bamburi Cement formulation and held him estopped from reneging.

p. 3
02

Prudence of adopting a decision under appeal before the Supreme Court

Holding

Even absent estoppel, the Court would not adopt the judgment in Civil Appeal No. 158 of 2013 while an appeal against it was pending in the Supreme Court, as the decision could be overturned.

Reasoning

The 1st respondent had petitioned the Supreme Court (Petition No. 13 of 2016) against the judgment in Appeal No. 158 of 2013. The outcome could go either way; adopting or proceeding with this appeal in those circumstances might render the Court's action of no value.

p. 3

Legal principles established

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  • A party who makes a conscientious election on how proceedings will proceed, upon which the other party relies, is estopped from going back on that election.

Court orders

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  1. 1.The appellant's application dated 25th November 2016 seeking adoption of the judgment in Civil Appeal No. 158 of 2013 as the judgment of this appeal is dismissed.
  2. 2.Costs of the application awarded to the 1st respondent.

The bench

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One judgment of the whole court — no separate or dissenting opinions.

AV
majority
RN
majority
DM
majority
On appeal from
High Court of Kenya at Nairobi
H.C. Misc. Application No. 294 of 2010
Jurisdiction invoked
Appellate jurisdiction of the Court of Appeal under the Constitution and the Appellate Jurisdiction Act over rulings of the High Court (as invoked by the appeal itself; no specific article quoted in the judgment)

Relief refused

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Adoption of the judgment and order of 17th June 2016 in Civil Appeal No. 158 of 2013 as the judgment of this appeal

The appellant is estopped from reneging on his earlier election to have the appeals heard separately, and adopting a decision pending before the Supreme Court would risk acting in vain

p. 3

Costs

The appellant's application was dismissed with costs to the 1st respondent.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

For the aforesaid reasons, we hereby dismiss the appellant's application with costs to the 1st respondent.
p. 3Final orders - dismissal of the application
In the absence of any reason for the appellant's belated change of positions, we find and hold that the appellant is estopped from reneging on his earlier stand as stated hereinabove.
p. 3Estoppel by election
On the same breath, it may be improper to proceed with the hearing of this appeal before the Supreme Court renders its decision in Petition No. 13 of 2016.
p. 3Pending appeal before the Supreme Court

Issues in the judgment

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minor

Paragraph 4 refers to the appeal being heard as 'Civil Appeal No. 153 of 2013' although the appeal under discussion is No. 158 of 2013, an apparent typographical inconsistency.

minor

Paragraph 14 refers to counsel as 'Mr. Kamau' while paragraph 10 identifies counsel for the appellant as 'Mr. Kimani', an inconsistency in the naming of counsel.

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, "Praful Shah v Deposit Protection Fund Board as Liquidator of Trust Bank Ltd (In Liquidation) & another [2019] KECA 946 (KLR)", Case Analysis (2019). Civil Appeal No. 174 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/946/eng@2019-02-22

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