Ncba Bank (K) Plc v Landmark Port Conveyors Limited & Buzeki Enterprises Limited [2020] KECA 487 (KLR)
The bottom line
#Kenya's Court of Appeal paused the sale of 53 trucks seized from Buzeki Enterprises, but NCBA Bank must deposit Kshs. 60 million as security or the pause lapses.
What this practically means
#Executive summary
#Key legal issues
#Whether the intended appeal is arguable
The Court found the appeal arguable on the interpretation of the Debentures, including the automatic crystallization clause
The Court held that the dispute concerns whether Landmark may attach and sell Buzeki's proclaimed properties in light of the Debentures held by the Bank. It found that the interpretation of the Debentures raises arguable issues, and that a single arguable issue is sufficient to satisfy the first limb of the Rule 5(2)(b) test.
Whether the appeal would be rendered nugatory if stay is not granted
Yes - if the 53 trucks and trailers are sold and the Bank succeeds on appeal, it would have lost its securities
The Court weighed the hefty decretal sum of Ksh. 118,566,172 against the value of the attached trucks and trailers, which constituted the Bank's security for a Kshs. 2.7 billion loan. Sale of the securities before the appeal would render the appeal nugatory, though the Court balanced this against Landmark's un-set-aside judgment by imposing security conditions.
Legal principles established
#- An applicant under Rule 5(2)(b) must satisfy the twin principles that the intended appeal is arguable and that it will be rendered nugatory if the orders sought are not granted
- The twin Rule 5(2)(b) principles need not both be extensively demonstrated; one weighty arguable issue suffices for the first limb
Court orders
#- 1.Stay of execution of the judgment and decree in favour of Landmark pending the hearing of the Bank's intended appeal against the ruling of 27th November 2019
- 2.That the 53 trucks and trailers attached by Moran Auctioneers shall remain under attachment but shall not be sold
- 3.That the Bank shall provide security of Kshs. 60,000,000 by deposit into an interest-earning account in the joint names of the parties' counsel within 30 days, failing which the stay shall stand discharged
- 4.That the appeal shall be filed within 60 days and heard on priority basis
- 5.Costs of the application shall be in the appeal
- On appeal from
- High Court of Kenya at Nairobi
- H.C.C.C No. 43 of 2017
- Jurisdiction invoked
- Section 3A & 3B of the Appellate Jurisdiction Act, Cap 9 and Rule 5(2)(b) of the Court of Appeal Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ncba Bank (K) Plc v Landmark Port Conveyors Limited & Buzeki Enterprises Limited [2020] KECA 487 (KLR)", Case Analysis (2020). Civil Application No. 1 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/487/eng@2020-07-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.