Masters Kenya Limited & another v Desert Runner Services Company Limited & 5 others (Civil Application E562 of 2024) [2024] KECA 1493 (KLR)
The bottom line
#The Court of Appeal refused to stop an auction because the applicants appealed the wrong ruling, never appealed the underlying judgment, and had already sold the property.
What this practically means
#Executive summary
#Key legal issues
#Whether the application was properly before the Court
The application was incompetent because the applicants claimed to be appealing against the impugned judgment while their notice of appeal, memorandum of appeal and extension-of-time order all related to the ruling on review
The Court noted that its earlier order of 15 July 2024 granting extension of time related to the ruling on review, and the memorandum of appeal dated 22 July 2024 also referred to the ruling on review. The applicants had not sought leave to appeal against the judgment itself, yet sought to stay that judgment. The Court found the application not properly before it.
Whether the appeal was arguable
No arguable point was established; the complaint that the trial court should have inserted Kshs.8,000,000 in order 3 was not arguable because the applicants never specifically pleaded that amount
The Court held that the applicants, having had the figure of Kshs.8,000,000 available when filing their pleadings, could not argue on appeal that the trial court ought to have inserted that figure into order 3 without having pleaded it. The ruling on review left the parties in the same position as after the judgment, and the unappealed orders remained enforceable.
Whether the appeal would be rendered nugatory if stay was not granted
The nugatory principle was not satisfied: the applicants had sold the suit property and thus had no ownership claim, and they did not suggest the 4th respondent could not refund any surplus should the appeal succeed
The Court applied Reliance Bank v Norlake Investments, holding that hardship must be assessed by weighing the conflicting claims of both sides. Having sold the property, the applicants could not claim loss of ownership, and the purchase price dispute was a matter between them and the 1st respondent, not a ground to obstruct the chargee's statutory power of sale.
Legal principles established
#- To succeed under Rule 5(2)(b), an applicant must satisfy both twin principles: that the intended appeal is arguable and that it will be rendered nugatory if stay is not granted
- The jurisdiction under Rule 5(2)(b) is original, independent and discretionary, but must be exercised judiciously and rationally
- Where orders of the trial court were not set aside or appealed against, they remain enforceable notwithstanding an unsuccessful application for review
Court orders
#- 1.The application dated July 26, 2024 is dismissed
- 2.Costs of the application awarded to the 1st and 4th respondents
- On appeal from
- High Court of Kenya
- Civil Case No. 916 of 2013
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules, Articles 159 & 164 of the Constitution, Sections 3, 3A & 3B of the Appellate Jurisdiction Act, and Sections 1A, 1B & 3A of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Masters Kenya Limited & another v Desert Runner Services Company Limited & 5 others (Civil Application E562 of 2024) [2024] KECA 1493 (KLR)", Case Analysis (2024). Civil Application No. E562 of 2024 (CACA). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1493/eng@2024-10-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.