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Court of AppealPartially AllowedCivil Application E144 of 2022· [2022] KECA 1047 (KLR)

KCB Bank Kenya Limited & another v Kimeto & Associates Advocates & 9 others; Marima & 2 others (Affected Party)

Court of Appeal
23 September 2022
2,289 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 Mumias Sugar administrator handover, protecting KCB's secured interests until its appeal is fully heard.

What this practically means

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Executive summary

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The Court of Appeal (Asike-Makhandia, Mohammed and ole Kantai, JJA) ruled on a notice of motion dated April 27, 2022 by KCB Bank Kenya Limited and its receiver manager, Ponangpali Venkata Ramana Rao, seeking stay of execution and an injunction pending an intended appeal against a combined ruling of Mabeya, J. dated April 14, 2022 in Insolvency Petition No. E004 of 2019. That ruling removed the 2nd applicant from the administration of Mumias Sugar Company Limited, appointed Kereto Marima as administrator, revoked the lease between Sarrai Group Limited and Mumias, and directed handover within seven days. The application was brought under Rules 5(2)(b) and 47 of the Court of Appeal Rules and Section 700 of the Insolvency Act, supported by Sarrai Group and opposed by several respondents including Vartox Resources Inc, Kimeto & Associates Advocates and the advocates' creditors. Applying the settled twin principles under Rule 5(2)(b) - arguability and nugatory-ness - the court found the intended appeal arguable on whether the trial court erred in applying Canadian Companies Creditors Arrangement Act principles instead of the Kenyan Insolvency Act, and in subordinating secured creditor interests to public interest. It further found the appeal would be rendered nugatory absent stay, since the administrator's dealings with charged assets might be irreversible. The motion was allowed only to the extent of a stay of execution of the April 14, 2022 ruling; the injunction was refused as superfluous. Costs were to abide the outcome of the intended appeal, and the ruling applies mutatis mutandis to Civil Application E133 of 2022.

Key legal issues

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01

Whether the intended appeal was arguable

Holding

Yes - arguable on whether the trial court erred in applying Canadian CCAA principles instead of the Insolvency Act, and in subordinating secured creditor interests to public interest.

Reasoning

The court needed only one bona fide arguable ground. It found two in the draft memorandum of appeal: the application of Canadian Companies Creditors Arrangement Act jurisprudence rather than Kenyan insolvency provisions, and the subordination of a secured creditor's interests to public interest. It declined to say more to avoid embarrassing the bench seized of the main appeal.

p. 4
02

Whether the appeal would be rendered nugatory absent stay

Holding

Yes - the applicants' fears that the administrator's actions over charged assets may be irreversible and that securities may not be recoverable were not idle.

Reasoning

Applying Reliance Bank v Norlake, the court weighed the hardship to the applicants against any suffering by respondents while awaiting the appeal. The apprehension that the administrator would take over charged assets in a manner that may not be reversible, and that recovery of securities could not be guaranteed if the appeal succeeded, satisfied the nugatory-ness limb.

p. 5
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Whether an injunction should also issue alongside the stay

Holding

No - once stay of execution of the ruling was granted, an injunction would be superfluous.

Reasoning

The court granted stay of execution of the April 14, 2022 ruling only. Because the stay preserved the position pending appeal, the additional injunctive relief restraining the administrator from dealing with charged assets added nothing and was refused on that basis.

p. 5

Legal principles established

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  • Rule 5(2)(b) jurisdiction is discretionary and requires the twin tests of an arguable appeal and nugatory-ness.
  • An arguable appeal need not necessarily succeed; it suffices that it is not frivolous and ought to be argued fully.
  • In assessing nugatory-ness the court weighs the conflicting claims of both parties on the facts of each case.

Court orders

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  1. 1.Stay of execution of the ruling of the High Court (Mabeya, J.) dated April 14, 2022 pending the hearing and determination of the intended appeal
  2. 2.Injunction refused as superfluous once stay was granted
  3. 3.Costs of the application to abide the outcome of the intended appeal
  4. 4.Ruling applies mutatis mutandis to Civil Application No. E133 of 2022

Authorities

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Legislation

  • Court of Appeal Rules, 2010Rule 5(2)(b)
  • Court of Appeal Rules, 2010Rule 47
  • Insolvency ActSection 700
  • Canadian Companies Creditors Arrangement Act, 1993

Cases cited (3)

  • Trust Bank Limited and Another vs. Investech Bank Limited & 3 Others
    [2000] eKLR

    Twin principles for stay under Rule 5(2)(b): arguable appeal and nugatory-ness.

  • Stanley Kang'ethe Kinyanjui vs. Tony Ketter & 5 Others
    [2013] eKLR

    Definition of an arguable appeal - one that is not frivolous and ought to be argued fully.

  • Reliance Bank Ltd vs. Norlake Investments Ltd
    [2002] E.A. 227

    Hardship of refusal of stay must be proportionate to suffering the respondent might undergo.

On appeal from
High Court of Kenya at Nairobi
Insolvency Petition No. E004 of 2019
Jurisdiction invoked
Rules 5(2)(b) and 47 of the Court of Appeal Rules, 2010; Section 700 of the Insolvency Act

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, "KCB Bank Kenya Limited & another v Kimeto & Associates Advocates & 9 others; Marima & 2 others (Affected Party)", Case Analysis (2022). Civil Application E144 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1047/eng@2022-09-23

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