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Court of AppealPartially AllowedCivil Application No. 1 of 2020· [2020] KECA 487 (KLR)

Ncba Bank (K) Plc v Landmark Port Conveyors Limited & Buzeki Enterprises Limited [2020] KECA 487 (KLR)

Court of Appeal
24 July 2020
1,240 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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This was a single-judge-equivalent application (a coram of three Judges of Appeal) under Rule 5(2)(b) of the Court of Appeal Rules seeking stay of execution and injunction pending appeal by NCBA Bank. The Bank had lost objection proceedings before the High Court (Mbogholi Msagha, J), which dismissed its claim to priority over 53 trucks and trailers of Buzeki Enterprises proclaimed in execution of a judgment for Landmark Port Conveyors of Ksh. 118,566,172. The Bank claimed priority under Debentures securing a Kshs. 2.7 billion loan that had crystallized. The Court of Appeal applied the twin Rule 5(2)(b) principles from Stanley Kang'ethe Kinyanjui v Tony Ketter: arguability and nugatory-ness. It found arguable issues on the interpretation of the Debentures, noting one sufficient issue meets the first limb, and found the appeal would be rendered nugatory if the securities were sold. Balancing Landmark's un-set-aside judgment, the Court granted a conditional stay: the 53 trucks and trailers remain under attachment but shall not be sold; the Bank must deposit Kshs. 60,000,000 security in a joint interest-earning account within 30 days failing which the stay lapses; the appeal to be filed within 60 days and heard on priority. Costs of the application were made costs in the appeal. The decision is an interlocutory exercise of discretion and does not disturb the High Court ruling.

Key legal issues

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01

Whether the intended appeal is arguable

Holding

The Court found the appeal arguable on the interpretation of the Debentures, including the automatic crystallization clause

Reasoning

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.

p. 2
02

Whether the appeal would be rendered nugatory if stay is not granted

Holding

Yes - if the 53 trucks and trailers are sold and the Bank succeeds on appeal, it would have lost its securities

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 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. 2.That the 53 trucks and trailers attached by Moran Auctioneers shall remain under attachment but shall not be sold
  3. 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. 4.That the appeal shall be filed within 60 days and heard on priority basis
  5. 5.Costs of the application shall be in the appeal

Authorities

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Legislation

  • Appellate Jurisdiction ActSection 3A
  • Appellate Jurisdiction ActSection 3B
  • Court of Appeal RulesRule 5(2)(b)

Cases cited (1)

  • Stanley Kang'ethe Kinyanjui V. Tony Ketter & 5 others
    (2013) eKLR
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

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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, "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.