Gulf African Bank Limited v Tejprakash Sehmi & 2 others [2020] KECA 240 (KLR)
The bottom line
#Kenya's Court of Appeal stopped execution of a land judgment against Gulf African Bank, confirming lenders can get stays when appeals raise arguable grounds.
What this practically means
#Executive summary
#Key legal issues
#Whether the appeal is arguable
All nine grounds of appeal were found arguable, including infringement of the right to be heard, want of ELC jurisdiction, and locus standi of the 1st respondent.
The court reviewed the nine grounds in the memorandum of appeal, including the right to be heard, jurisdiction of the ELC, and locus standi, and concluded that the grounds were arguable even if they might not ultimately succeed. Under the twin-principle test, a single bona fide arguable ground suffices and an arguable appeal need not necessarily succeed.
Whether the appeal would be rendered nugatory if stay is not granted
The appeal would be rendered nugatory because the suit property could be disposed of or change character, and neither respondent rebutted the applicant's apprehension of substantial loss.
The charged property is the same property adjudged to the 1st respondent. The applicant pleaded apprehension that the property would disappear, change hands or character, rendering it out of reach. Neither respondent proposed security or demonstrated sufficient assets; the 1st respondent did not controvert the claim by replying affidavit, so the loss would be irreversible and not compensable by damages.
Legal principles established
#- An applicant under Rule 5(2)(b) must satisfy the twin principles that the appeal is arguable and that it will be rendered nugatory if the orders sought are not granted.
- The onus shifts to a respondent to rebut by evidence an allegation that the appeal will be rendered nugatory on account of the respondent's alleged impunity.
Court orders
#- 1.Affirmation of the interim orders issued on 30th July 2020 (stay of execution, injunction restraining execution of the ELC judgment, and restraint on interference with the applicant's charges over Nairobi Block 55/78)
- 2.Direction to the registry to liaise with the parties with a view to processing the appeal for speedy hearing and disposal
- 3.Costs of the application to await the outcome of the appeal
- On appeal from
- Environment and Land Court
- Nairobi ELC No. 703 of 2011
- Jurisdiction invoked
- Sections 3A and 3B of the Appellate Jurisdiction Act and Rule 5(2)(b) of the Court of Appeal Rules 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Gulf African Bank Limited v Tejprakash Sehmi & 2 others [2020] KECA 240 (KLR)", Case Analysis (2020). Civil Appeal (Application) No. 120 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/240/eng@2020-10-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.