Spire Properties (K) Limited v Gikandi Ngibuini t/a Gikandi & Co Advocates & 12 others (Civil Application E058 of 2022) [2023] KECA 464 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Effect of final judgment on conditional stay orders and deposits
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.
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.
Intended appeal to the Supreme Court as a ground to withhold release
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.
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.
Proper forum and form for an application for consequential relief
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.
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.
Joinder of advocates as parties
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.
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.
Legal principles established
#- 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
#- 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.No order as to costs
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.