Frankart Printers & another v Kenya Finance Corporation Ltd & Another [1998] KECA 154 (KLR)
The bottom line
#Kenya's Court of Appeal refused to halt a property sale because the borrowers sat on their appeal for seven years without filing it.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the applicants deserved the exercise of the court's discretion to grant an injunction or stay pending an intended appeal
- 2.Whether the applicants had an arguable appeal
- 3.Whether the status quo should be maintained pending the hearing of the appeal
- 4.Whether the application, brought more than seven years after the notice of appeal with no appeal filed, was an abuse of the process of the court
Key legal issues
#Whether an applicant for stay or injunction pending appeal who has not filed the appeal can obtain relief
The application was dismissed because the applicants, having filed a notice of appeal more than seven years earlier, never lodged the appeal, never sought certified proceedings, and never relisted the motion after obtaining an interim stay, with no acceptable explanation.
The court reiterated the familiar rule 5(2)(b) test: whether the discretion should be exercised in the applicant's favour, whether there is an arguable appeal, and whether the status quo should be maintained. It held that a seven-year unexplained failure to file the appeal, while enjoying an interim stay, rendered the application an abuse of process; granting it would make the court complicit in that abuse. The application was therefore absolutely without merit and was dismissed with costs.
Legal principles established
#- On an application for injunction or stay of execution pending appeal, the court considers whether the applicants deserve the exercise of its discretion, whether they have an arguable appeal, and whether the status quo should be maintained pending the hearing of the appeal; an applicant who fails to lodge the intended appeal without explanation abuses the process of the court.
- A court should not grant relief under rule 5(2)(b) to an applicant whose inaction would make the court a party to the abuse of its own process.
Court orders
#- 1.The application for injunction and/or stay pending intended appeal is dismissed with costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- H.C.C.C. No. 641 of 1990
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules (injunction and/or stay pending intended appeal)
Relief refused
#Injunction restraining the respondents from selling or dealing with the charged properties pending determination of the intended appeal
The applicants failed to file the intended appeal for over seven years with no acceptable explanation, making the application an abuse of the process of the court
Stay of that part of the High Court order requiring the applicants to deposit all moneys demanded within 15 days as a condition of the injunction
Same failure to prosecute the intended appeal; the application was absolutely without merit
Costs
The application is dismissed with costs to the respondents
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
What is required of this court on an application for injunction or stay of execution pending appeal is to consider whether the applicants deserve that the discretion of the court should be exercised in their favour, whether they do have an arguable appeal and whether status quo should be maintained pending the hearing of the appeal.
Granting the application, therefore, would be tantamount to the court being a party to the abuse of its process. The application is absolutely without merit. We dismiss it with costs.
For more than 7 years the applicant having secured the stay order never relisted the motion for hearing.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Frankart Printers & another v Kenya Finance Corporation Ltd & Another [1998] KECA 154 (KLR)", Case Analysis (1998). Civil Application No. Nai 82 of 1990. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1998/154/eng@1998-04-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.