Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealAllowedCivil Application No. 153 of 2009 (UR 105/09)

Kenya Commercial Bank Limited v Ombija (Civil Application 153 of 2009) [2009] KECA 228 (KLR)

Court of Appeal of Kenya
24 July 2009
Philip Kiptoo TunoiP. K. TunoiDAD. K. S. AganyanyaAVAlnashir Visram
1,556 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

#

Kenya's Court of Appeal paused a High Court credit card damages case, confirming a case can be stayed anytime before judgment is delivered.

What this practically means

#

Executive summary

#
This is a ruling of the Court of Appeal at Nairobi on an application under Rule 5(2)(b) of the Court of Appeal Rules by Kenya Commercial Bank Limited for a stay of proceedings in HCCC No. 547 of 2008 pending an intended appeal against a ruling of Khaminwa, J dated 5th March 2009. The High Court had struck out the bank's defence in a suit by Hon. Justice Nicholas Ombija, a credit card holder, who claimed breach of contract and disparagement after the bank declined three card transactions despite adequate funds, and had entered judgment with damages to be assessed by formal proof, judgment on quantum being slated for 27th July 2009. The applicant argued that its letter of apology did not constitute an admission of claim and that the High Court had wrongly struck out the defence on the basis of admission. The respondent countered that proceedings having concluded, there was nothing to stay, relying on Owino v Madowo, and that the application was inordinately delayed. The Court applied the established twin principles, finding the intended appeal arguable and that it would be rendered nugatory if judgment were delivered, following Delphis Bank Ltd v Channan Singh Chatthe. It rejected the contention that nothing remained to stay, holding that proceedings are alive until judgment is delivered. It also found no inordinate delay. The application was allowed with costs in the appeal.

Questions the Court framed

#

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

  1. 1.Whether the intended appeal is arguable
  2. 2.Whether the appeal, if successful, would be rendered nugatory unless a stay of proceedings is granted
  3. 3.Whether the proceedings in the superior court having been concluded, there is nothing to stay
  4. 4.Whether there was inordinate delay in bringing the application

Key legal issues

#
01

Whether the intended appeal was arguable

Holding

The Court found the appeal arguable on whether the letter of apology constituted an admission justifying striking out the defence, and on whether the bank was in breach of the credit card agreement and entitled to suspend the account.

Reasoning

The Court applied the established twin principles for Rule 5(2)(b) applications. It identified two arguable points: whether the apology letter amounted to an 'admission' warranting striking out the defence, and whether dishonouring the transactions breached the credit card agreement and entitled the bank to suspend the respondent's account. It emphasised that an arguable appeal need not succeed, only be fully arguable.

p. 3
02

Whether the appeal would be rendered nugatory absent a stay

Holding

The Court was satisfied the appeal would be rendered nugatory, following Delphis Bank Ltd v Channan Singh Chatthe, since judgment on quantum was imminent and a subsequent separate appeal could not undo the nugatory effect.

Reasoning

The judgment on quantum was slated for delivery on 27th July 2009. Following the reasoning in Delphis Bank, the Court recognised that although the applicant could mount a separate appeal against the second judgment, that possibility does not undo the fact that the present intended appeal would have been overtaken by events and rendered nugatory.

p. 3
03

Whether there was anything to stay given that proceedings in the superior court had concluded

Holding

The Court rejected the respondent's submission that concluded proceedings left nothing to stay, holding that proceedings remain alive until final judgment is delivered.

Reasoning

Relying on Owino v Madowo, the respondent argued proceedings had been concluded and there was nothing to stay. The Court held this untenable, stating the Owino case says nothing of the sort, and that until judgment is delivered the proceedings are very much alive, even entitling parties to amend pleadings.

p. 3
04

Whether there was inordinate delay in bringing the application

Holding

The Court found no inordinate delay, at least none that caused or could have caused prejudice to the respondent.

Reasoning

The respondent had submitted that the application was inordinately delayed. The Court disposed of this contention briefly, holding that no delay had or could have caused prejudice to the respondent, implying prejudice is the touchstone for delay in this context.

p. 3

Legal principles established

#
  • An application for stay of proceedings under Rule 5(2)(b) requires the applicant to satisfy the court both that the intended appeal is arguable and that, unless the order is granted, the appeal would be rendered nugatory.
  • An arguable appeal need not necessarily succeed; it suffices that it is one which ought to be argued fully before the Court.
  • Until judgment is finally delivered, proceedings remain alive and are capable of being stayed; the fact that submissions have concluded does not mean there is nothing to stay.

Court orders

#
  1. 1.Further proceedings in HCCC No. 547 of 2008 stayed pending the final determination of the intended appeal
  2. 2.Costs shall be in the appeal

The bench

#

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

Philip Kiptoo Tunoi
majority
DA
majority
AV
majority
On appeal from
High Court of Kenya at Nairobi
H.C.C.C. No. 547 of 2008
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules

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.

The discretion of the Court on an application of this kind has to be exercised upon the established principles which require an applicant to satisfy the Court both that the intended appeal is arguable and that unless the order sought is granted, the appeal, if successful, would be rendered nugatory.
p. 3Twin principles for stay of proceedings under Rule 5(2)(b)
An “arguable” appeal is not one which must necessarily succeed, but one which ought to be argued fully before the Court.
p. 3Meaning of arguable appeal
Until judgment is finally delivered, the proceedings are very much alive, entitling any party to even apply for amendment of pleadings before judgment.
p. 3Proceedings remain alive until judgment
Accordingly, and for reasons cited, we allow this application and order that further proceedings in HCCC No. 547 of 2008 be stayed pending the final determination of the intended appeal herein. Costs shall be in the appeal.
p. 3Final orders

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (5)

#

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

Cite this brief

#

Cite this brief

Caselaw, "Kenya Commercial Bank Limited v Ombija (Civil Application 153 of 2009) [2009] KECA 228 (KLR)", Case Analysis (2009). Civil Application No. 153 of 2009 (UR 105/09). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2009/228/eng@2009-07-24

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