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Court of AppealPartially AllowedCivil Application No. Nai. 56 of 2001 (33/2001 UR)

Wilderness Trails (K) Limited v Thomas Nkubitu [2001] KECA 227 (KLR)

Court of Appeal
30 March 2001
RKR.O. KwachASA.B. ShahSBS.E.O. Bosire
1,303 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan lawyer was ordered to personally repay Shs.243,000 after a magistrate wrongly released appeal money and the lawyer lied under oath.

What this practically means

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Executive summary

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This ruling of the Court of Appeal at Nairobi (Kwach, Shah and Bosire, JJ.A) determined an application under rule 5(2)(b) of the Court's Rules by Wilderness Trails (K) Limited, the defendant in Meru C.M.C.C. No. 223 of 1997, whose appeal against a Resident Magistrate's judgment of Shs.193,500/= was dismissed by Commissioner of Assize G.A. Omwitsa on 21 September 2000 in H.C.C.A. No. 25 of 1998. A consent stay of execution pending appeal to the Court of Appeal had been granted, with the decretal sum deposited in a joint advocate account. On 6 February 2001 the plaintiff's advocate, Mr. Anampiu, applied to the Resident Magistrate for release of the deposited funds, swearing an affidavit denying service of the notice of appeal - a statement the Court found clearly false, as Mr. Anampiu admitted service before it. Despite opposition and evidence that the appeal period had not expired, the magistrate on 28 February 2001 ordered release of Shs.243,000/= and inserted a penal clause that had not been prayed for. The Court of Appeal held that the magistrate had no jurisdiction to entertain the application once the matter had gone to the High Court, questioned the speed of the release and the unprayed penal clause, and allowed the application. It exceptionally granted a mandatory injunction directing Mr. Anampiu personally to re-deposit Shs.243,000/= within 7 days into an interest-bearing account in joint names, and ordered the respondent and Mr. Anampiu to pay the applicant's costs, assessed at Shs.15,000/=, in equal shares.

Questions the Court framed

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

  1. 1.Whether the Court of Appeal should grant a mandatory injunction under rule 5(2)(b) compelling the respondent's advocate to re-deposit the sum released to him
  2. 2.Whether the Resident Magistrate had jurisdiction to order release of the deposited decretal sum once the matter had proceeded to the High Court on appeal

Key legal issues

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01

Jurisdiction of the trial court after an appeal has been lodged in the High Court

Holding

The Resident Magistrate had no jurisdiction to order release of the deposited funds once the matter was before the High Court on appeal.

Reasoning

The decretal sum had been deposited in a joint account pursuant to a consent stay order made by the Commissioner of Assize in the High Court appeal. The magistrate's court, having been seized of the matter on appeal, could not entertain further applications concerning it; the release order was made without jurisdiction despite evidence that the time for lodging the appeal had not expired.

p. 3
02

Availability of mandatory injunction on rule 5(2)(b) application

Holding

Although a mandatory injunction is not usually granted on a rule 5(2)(b) application, the court may grant it where the circumstances warrant, as here in the interest of justice.

Reasoning

The respondent's advocate had sworn a false affidavit denying service of the notice of appeal, and the magistrate had ordered release of the funds with unusual speed and inserted an unprayed penal clause. These circumstances justified the far-reaching order compelling personal re-deposit of the sum to preserve the subject matter of the intended appeal.

p. 3
03

False affidavit by an advocate

Holding

The respondent's advocate's sworn statement that no notice of appeal had been served was clearly false, as he admitted before the Court that he had been served.

Reasoning

Mr. Anampiu deponed that Mr. Mahan had never served a notice of appeal on him or the plaintiff, yet proof of service by Mr. Mahan existed and Mr. Anampiu admitted service before the Court. This misstatement, together with his failure to justify his conduct before the Court, informed the personal costs order and the mandatory re-deposit order against him.

p. 2

Legal principles established

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  • Once a matter has gone to the High Court on appeal, the trial magistrate's court has no jurisdiction to entertain further applications in connection with it.
  • A mandatory injunction may exceptionally be granted on a rule 5(2)(b) application where the circumstances warrant it.

Court orders

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  1. 1.Mr. Anampiu personally to pay, within 7 days, the sum of Shs.243,000/= to Ms. Bali-Sharma & Bali-Sharma Advocates
  2. 2.The said advocates to deposit the sum in an interest-bearing account with Housing Finance Company of Kenya Ltd, Nyeri Branch, in the joint names of Bali-Sharma & Bali-Sharma Advocates and the Deputy Registrar, High Court, Nyeri
  3. 3.The respondent and Mr. Anampiu to pay in equal shares costs of the application, assessed at Shs.15,000/=, payable within 7 days and in default execution to issue

The bench

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

RK
majority

Wrote the judgment

AS
majority

Wrote the judgment

SB
majority

Wrote the judgment

On appeal from
High Court of Kenya at Meru (Commissioner of Assize)
H.C.C.A. No. 25 of 1998
Jurisdiction invoked
Rule 5(2)(b) of the Rules of this Court (Court of Appeal Rules)

Relief refused

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Costs in the intended appeal (the normal course)

The court departed from the normal order because of the advocate's conduct, instead making a personal costs order

p. 3

Costs

The respondent and Mr. Anampiu to pay in equal shares the costs of the application to the applicant, assessed at Shs.15,000/=, payable within 7 days and in default execution to issue.

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.

There was no jurisdiction in the Resident Magistrate's court to order such release. Once a matter had gone to the High Court the Magistrate had no jurisdiction to entertain any further applications in connection therewith.
p. 3Lack of jurisdiction of trial court after appeal to High Court
We are aware that a mandatory injunction is not usually granted under a rule 5(2)(b) application; but if circumstances so warrant we can grant it.
p. 3Mandatory injunction under rule 5(2)(b)
We order, therefore, that Mr. Anampiu personally shall within 7 days from the date of this order pay to Ms. Bali- Sharma & Bali-sharma Advocates the sum of Shs.243,000/= which sum the said advocates will deposit in an interest bearing account with Housing Finance Company of Kenya Ltd, Nyeri Branch in the joint names of Bali-Sharma & Bali-Sharma Advocates and the Deputy Registrar, High Court, Nyeri.
p. 3Final orders - mandatory re-deposit of funds
we order that the respondent and Mr. Anampiu pay in equal shares costs of this application to the applicant and we assess these costs at Shs.15,000/= which must be paid within 7 days and in default execution to issue.
p. 3Final orders - costs

Issues in the judgment

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minor

The judgment refers to the High Court appeal as heard at Nyeri in one passage while the cause title places it at Meru

minor

The respondent's application grounds refer to 'H.C.C.C (sic) No. 25/98' and 'no appeal from the court of Appeal', internally inconsistent references to the appeal status

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (8)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Wilderness Trails (K) Limited v Thomas Nkubitu [2001] KECA 227 (KLR)", Case Analysis (2001). Civil Application No. Nai. 56 of 2001 (33/2001 UR). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2001/227/eng@2001-03-30

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