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Court of AppealDismissedCivil Application No NAI of 1987 (Rule 5(2)(b) application) — in respect of High Court Civil Case No 1421 of 1987

Patricia Hudges Scott & another v Kago & 2 others [1987] KECA 81 (KLR)

Court of Appeal of Kenya
9 July 1987
JNJ.O. NyarangiFAF.K. ApalooJMJ.R.O. Masime
750 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to pause a High Court order because the other side's interests outweighed the appellants' wish to keep the restaurant lease.

What this practically means

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Executive summary

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This was an application under Rule 5(2)(b) of the Court of Appeal Rules by Patricia Hudges Scott and Duncan Scott, mother and son, seeking stay of execution of an interlocutory order made on June 4, 1987 in High Court Civil Case No 1421 of 1987. The applicants ran the City Hall Restaurant on a lease registered in the first applicant's name with landlord Nairobi City Commission, and warned that eviction would place them in breach of contract and expose them to litigation, rendering any successful appeal nugatory. Counsel for the respondents countered that even without a stay the appeal could not be rendered nugatory, since the business would simply be run by Patrician Enterprises Ltd, the company owning the business. The Court noted the tenancy was in the first applicant's name, but found it striking that the first respondent held the majority shareholding in the company, that the lease was initially intended for the company, and that the respondents had advanced a year's rent. Concluding there were serious disputes about how the lease was procured and about the business accounts, the Court held that although the usual rule is to order stay to preserve property pending determination of the dispute, special circumstances here justified departing from that practice and from the authorities on which it rests, including MM Butt, Gheewala, Joash Ougo and Erinford Properties. It further held Giella v Cassman Brown has no relevance to the Court's stay practice. The application was dismissed with costs in the appeal.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether an order for stay of execution of the interlocutory order of June 4, 1987 should be granted pending appeal
  2. 2.Whether the appeal, if successful, would be rendered nugatory if stay were refused

Key legal issues

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01

Whether the appeal would be rendered nugatory absent a stay

Holding

No — the respondents have an interest in the subject-matter which ought to be safeguarded pending the appeal, and a stay would cause more hardship than it would avoid

Reasoning

The Court accepted the tenancy was in the first applicant's name and that eviction could expose her to breach claims. However, it found serious disputes as to how the lease was procured and as to the business accounts, the first respondent holding majority shareholding in the company owning the business and having advanced a year's rent. These special circumstances displaced the usual practice of preserving the property, so the appeal would not be nugatory without a stay.

p. 2
02

Relevance of the Giella v Cassman Brown conditions to stay applications under Rule 5(2)(b)

Holding

The Giella v Cassman Brown decision has no relevance to the Court's practice on such applications

Reasoning

The Court emphasised that the governing consideration is preservation of the subject-matter so the appellant's rights are safeguarded and a successful appeal is not nugatory. It distinguished the authorities on which the usual practice of granting stay is based, finding special circumstances here, and expressly excluded the Giella principles from Rule 5(2)(b) applications.

p. 2

Legal principles established

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  • The purpose of a stay of execution application under Rule 5(2)(b) is to preserve the subject-matter in dispute so that the appeal is not rendered nugatory; where special circumstances show a stay would cause greater hardship, the usual practice of granting stay to preserve property pending determination of the dispute will not be followed

Court orders

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  1. 1.Application for stay of execution dismissed
  2. 2.Costs of the application to be costs in the appeal

The bench

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One judgment of the whole court — no separate or dissenting opinions.

JN
majority
FA
majority
JM
majority
On appeal from
High Court of Kenya
Civil Case No 1421 of 1987
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules (application for stay of execution pending appeal)

Relief refused

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Stay of execution of the High Court interlocutory order of June 4, 1987

The respondents have an interest in the subject-matter to be safeguarded and a stay would inflict more hardship than it would avoid

p. 2

Costs

Costs of the application shall be costs in the appeal.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Costs of the application shall be costs in the appeal.
p. 2Final order on costs
In the result, this application fails.
p. 2Disposition — application dismissed
the purpose of an application such as the present one is to preserve the subjectmatter in dispute so that the rights of an appellant, who is exercising his undoubted right of appeal, are safeguarded and the appeal if successful is not nugatory
p. 2Purpose of stay of execution under Rule 5(2)(b)
We would emphasise that the decision in Giella v Cassman Brown & Co Ltd [1973] EA 358, has no relevance to the court’s practice.
p. 2Inapplicability of Giella principles to Rule 5(2)(b) applications

Issues in the judgment

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minor

The second respondent is referred to as deceased but the record does not give the second respondent's name, and the applicant/appellant designation is used inconsistently (the applicants are described as appellants though the heading calls the matter an application by them)

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, "Patricia Hudges Scott & another v Kago & 2 others [1987] KECA 81 (KLR)", Case Analysis (1987). Civil Application No NAI of 1987 (Rule 5(2)(b) application) — in respect of High Court Civil Case No 1421 of 1987. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1987/81/eng@1987-07-09

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