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Court of AppealPartially AllowedNotice of Motion dated August 31, 2022 (in relation to Civil Appeal No. 135 of 2018)· [2023] KECA 464 (KLR)

Spire Properties (K) Limited v Gikandi Ngibuini t/a Gikandi & Co Advocates & 12 others (Civil Application E058 of 2022) [2023] KECA 464 (KLR)

Court of Appeal
28 April 2023
3,350 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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The Court of Appeal ordered Mayfair Bank to release Kshs 7.6 million deposited as appeal security, ruling such deposits become repayable once an appeal is decided, even if a further appeal is planned.

What this practically means

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Executive summary

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This was a notice of motion dated August 31, 2022 by Spire Properties (K) Limited seeking release of Kshs 7,601,112.50 plus interest deposited in a joint interest-earning account at Mayfair Bank, Nyali Branch, held in the joint names of the former advocates for the parties. The deposit had been a condition of stay of execution of an ELRC judgment (Rika J., 8 September 2017) pending the hearing of Civil Appeal No. 135 of 2018, which the Court of Appeal allowed on 29 July 2022, setting aside the ELRC judgment. The bank and the former advocate for the respondents refused to facilitate release, citing an intended appeal to the Supreme Court. The respondents raised objections of incompetency: unsealed annexures, non-joinder of interested parties, the wrong forum, and the joinder of advocates as parties. The court rejected all objections, holding that unsealed annexures were cured and not fatal, joinder defects were cured, the application was properly before the Court of Appeal since the deposit order's lifespan was tied to the appeal, and the filing in a fresh file caused no prejudice. Applying its own decision in Eastland Hotel Limited v Wafula Simiyu & Co Advocates, the court held that interlocutory and conditional orders lapse upon delivery of final judgment, and a conditional deposit becomes due and repayable upon fulfilment of the condition. The mere intention to appeal to the Supreme Court was no ground to withhold consequential relief absent a granted stay. The court allowed the application and directed release of the funds, but made no order as to costs, holding that the advocates ought not to have been made parties.

Key legal issues

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01

Effect of final judgment on conditional stay orders and deposits

Holding

The condition for the stay, namely the deposit in the joint account, lapsed upon the Court of Appeal's judgment allowing the appeal and setting aside the ELRC judgment; the deposited sum became due and repayable to the applicant.

Reasoning

The court relied on its earlier decision in Eastland Hotel Limited v Wafula Simiyu & Co Advocates, holding that interlocutory orders made prior to final judgment lapse upon its delivery, and a conditional deposit is discharged and repayable on fulfilment of the condition. Since the deposit was security for a judgment now set aside, and no stay of that judgment had been granted by any court, the respondents had no lawful basis to retain the funds.

p. 6
02

Intended appeal to the Supreme Court as a ground to withhold release

Holding

The mere existence or intention of filing an appeal to the Supreme Court does not justify withholding consequential orders; only a granted stay of execution can do so.

Reasoning

The court distinguished an application for release of funds from an application for stay. The respondents' submissions about preserving the substratum of a prospective Supreme Court appeal would have been relevant only if a stay had been sought. As no stay had been granted by the Court of Appeal or the Supreme Court, the court had no justification to decline the consequential orders.

p. 6
03

Proper forum and form for an application for consequential relief

Holding

Although the ideal course was to make the application in the appeal file, filing it in a fresh matter occasioned no prejudice because the order sought was consequential and could have been granted on the court's own motion.

Reasoning

The court noted that section 91 of the Civil Procedure Act ordinarily governs restitution where a decree is reversed, but here two orders from different courts existed and the ELRC could not deal with a matter handled by the Court of Appeal. The lifespan of the deposit order was tied to the appeal, so the application was merely consequential and the procedural misstep was not fatal.

p. 6
04

Joinder of advocates as parties

Holding

Ordinarily advocates should not be joined to proceedings in which they appear only as counsel, but in the circumstances the misstep did not go to the root of the matter.

Reasoning

The court agreed that the joinder of the advocates was a procedural error but, applying the principle that procedural rules are handmaidens of justice and should not be elevated to a fetish, held it did not warrant striking out the application, since the order had to be directed at the account held in the advocates' joint names.

p. 6

Legal principles established

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  • Upon the hearing and determination of an appeal, interlocutory and conditional stay orders, including conditional deposits in joint accounts, lapse with the delivery of the final judgment; a conditional deposit becomes due and repayable upon fulfilment of the condition.
  • A court should not decline consequential orders flowing from its own final judgment merely because an appeal to the Supreme Court is intended, unless a stay of execution is sought and granted.
  • Failure to seal or mark exhibits annexed to an affidavit in accordance with the Oaths and Statutory Declarations Act is not fatal where the affidavit itself discloses the merits and the allegations are not challenged.
  • Rules of procedure are handmaidens of the court and should not be elevated to fetters on the administration of justice.

Court orders

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  1. 1.The 2nd Respondent (Mayfair Bank) directed to release the principal sum of Kshs 7,601,112.50 plus interest held in the joint account at Mayfair Bank, Nyali Branch, to the applicant by transfer to the applicant's advocate's Kenya Commercial Bank account, Hurlingham branch
  2. 2.No order as to costs

Authorities

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Legislation

  • Appellate Jurisdiction Actsections 3A and 3B
  • Civil Procedure Actsection 91
  • Oaths and Statutory Declarations Actsection 6
  • Oaths and Statutory Declarations Rulesrule 9

Cases cited (9)

  • 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
  • Abraham Mtyangi v S O Omboo & others
    [2003] eKLR
  • Fredrick Mwangi Nganga v Garam Investments & another
    [2013] eKLR
  • Solomon Omwega Omache & another v Zachary O Ayieko & 2 others
    [2016] eKLR
  • Kenya Power & Lighting Company Limited v Benzene Holdings Limited t/a Wyco Paints
    [2016] eKLR
  • Sarah Hersi Ali v Kenya Commercial Bank Ltd
    Civil Application No. Nai. 165 of 1999
  • Ndegwa Wachira v Ricarinda Wanjiju Ndanjeru
    Civil Appeal No 44 of 1984 [1987] KLR 252; [1986-1989] EA 577
On appeal from
Employment and Labour Relations Court
Cause No. 79 of 2013
Jurisdiction invoked
Inherent jurisdiction and sections 3A and 3B of the Appellate Jurisdiction Act; consequential relief following the Court of Appeal's judgment in Civil Appeal No. 135 of 2018

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, "Spire Properties (K) Limited v Gikandi Ngibuini t/a Gikandi & Co Advocates & 12 others (Civil Application E058 of 2022) [2023] KECA 464 (KLR)", Case Analysis (2023). Notice of Motion dated August 31, 2022 (in relation to Civil Appeal No. 135 of 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/464/eng@2023-04-28

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