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Court of AppealPartially AllowedNotice of Motion dated September 21, 2022 arising from Civil Appeal No. 139 of 2018 consolidated with Civil Appeal No. 138 of 2018· [2023] KECA 463 (KLR)

Transnational Bank Limited v Jackson Ngibuini Gikandi t/a Gikandi & Co Advocates & 10 others; NCBA Bank Limited (Interested Party) (Civil Application E061 of 2022) [2023] KECA 463 (KLR)

Court of Appeal of Kenya
28 April 2023
2,170 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Court of Appeal ordered NCBA Bank to release Kshs 32 million security to Transnational Bank because security deposits automatically become repayable once an appeal is decided.

What this practically means

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Executive summary

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By a Notice of Motion dated September 21, 2022, Transnational Bank Limited, the successful appellant in Civil Appeal No. 139 of 2018 consolidated with Civil Appeal No. 138 of 2018, sought an order compelling NCBA Bank Limited, the interested party, to release Kshs 32,000,000/= deposited as security in a joint interest-earning account, together with accrued interest, to its advocates without the participation of the 1st respondent. The 1st respondent opposed, arguing that his clients had appealed to the Supreme Court, that release would render any successful appeal nugatory, and that the application was defective for non-joinder and for being filed in the wrong file. The 2nd to 11th respondents argued the application should have been made in the file in which the deposit order was made and that the court lacked jurisdiction after final judgment. The Court of Appeal at Mombasa (Kairu, Lesiit and Odunga, JJA) allowed the application. It held that the joinder defect, if any, was cured by joining the 2nd to 11th respondents; that although the ideal course is to file in the original matter, the relief sought was consequential and could have been granted even on the court's own motion; and that, following Eastland Hotel Limited v Wafula Simiyu, conditional deposit orders lapse upon delivery of the final judgment, the deposit becoming due and repayable upon fulfilment of the condition. Absent an application for stay of execution, the pendency of an appeal to the Supreme Court did not justify withholding release. The court directed NCBA Bank to pay the funds and accrued interest to the applicant's advocates' account, and made no order as to costs, holding that the 1st respondent, acting as counsel, ought not technically to have been a party. The application, filed as a consequential proceeding, does not disturb the July 29, 2022 appellate judgment.

Key legal issues

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01

Effect of final judgment on interlocutory security-deposit orders

Holding

Conditional stay and deposit orders lapse upon delivery of the final judgment; the deposit becomes due and repayable upon fulfilment of the condition, and release follows unless a stay is sought and granted

Reasoning

The order depositing Kshs 32,000,000/= as security was conditional on the outcome of the appeal. The appeal was determined in the applicant's favour on July 29, 2022. Following Eastland Hotel Limited v Wafula Simiyu, the court held that conditional deposits are discharged and become repayable once the condition is fulfilled. The respondents' submissions would only have been relevant to an application for stay, which was not before the court; the mere existence of a further appeal to the Supreme Court did not preserve the lapsed orders.

p. 5
02

Correct forum for a consequential application releasing deposited security

Holding

Although the ideal course is to file in the matter in which the order was made, a fresh application is not fatal where the order's lifespan was tied to the appeal, because the relief sought is consequential and could have been granted on the court's own motion

Reasoning

The court accepted that the application should ideally have been made in the original proceedings, but held that no prejudice flowed from the fresh filing. The order for deposit was tied to the lifespan of the appeal, so upon determination the release was a consequential order flowing from the judgment. Citing Ndegwa Wachira v Ricarinda Wanjiju Ndanjeru, the court held that procedural rules should facilitate, not fetter, the administration of justice. The joinder defect was also cured when the 2nd to 11th respondents were joined.

p. 4

Legal principles established

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  • Upon the hearing and determination of an appeal, interlocutory orders and conditional deposits made as security pending the appeal lapse automatically with delivery of the final judgment, and a conditional deposit becomes due and repayable upon fulfilment of the condition
  • A court may entertain a consequential application for release of security notwithstanding that it is brought in a fresh filing rather than the original file, since rules of procedure are handmaidens of justice and the court could have granted such orders even on its own motion
  • Unless a stay of execution of the judgment releasing security is sought and granted, the pendency of an appeal to the Supreme Court does not justify declining to release security deposited pending appeal

Court orders

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  1. 1.The Interested Party, NCBA Bank Limited, directed to pay the sum of Kshs 32,000,000/= jointly held by the applicant and the 1st respondent in Account No. 534xxxxxxx together with interest accrued thereon to the applicant's Advocate's Account No 100xxxxxxx held at the Interested Party's Bank
  2. 2.No order as to costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 159(2)(d)
  • Court of Appeal Rules, 2010Rule 1(2)
  • Appellate Jurisdiction ActSections 3A and 3B

Cases cited (5)

  • Kim Jong Kyu v Housing Finance Company Ltd & 2 others
    [2015] eKLR
  • Mercy Wamboi Njoroge v Francis Babu Mwangi & another
    [2019] eKLR
  • Eastland Hotel Limited v Wafula Simiyu & Co Advocates
    [2015] eKLR
  • Kenya Power & Lighting Company Limited v Benzene Holdings Limited t/a Wyco Paints
    [2016] eKLR
  • Ndegwa Wachira v Ricarinda Wanjiju Ndanjeru
    Civil Appeal No. 44 of 1984 [1987] KLR 252; [1986-1989] EA 577
On appeal from
Court of Appeal of Kenya
Civil Appeal No. 139 of 2018 consolidated with Civil Appeal No. 138 of 2018
Jurisdiction invoked
Rule 1(2) of the Court of Appeal Rules, 2010; sections 3A and 3B of the Appellate Jurisdiction Act; article 159(2)(d) of the Constitution of Kenya, 2010

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Transnational Bank Limited v Jackson Ngibuini Gikandi t/a Gikandi & Co Advocates & 10 others; NCBA Bank Limited (Interested Party) (Civil Application E061 of 2022) [2023] KECA 463 (KLR)", Case Analysis (2023). Notice of Motion dated September 21, 2022 arising from Civil Appeal No. 139 of 2018 consolidated with Civil Appeal No. 138 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/463/eng@2023-04-28

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