Suresh Ratilal Khiroya v Bina Sanghani & another [2011] KECA 139 (KLR)
The bottom line
#The Court of Appeal dismissed a stay application because the applicant never filed a notice of appeal against the very order she wanted stayed.
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 applicant filed a competent notice of appeal as a prerequisite to an application under rule 5(2)(b) of the Court of Appeal Rules
- 2.Whether the intended appeal against the order declining review is arguable
- 3.Whether the applicant was granted an opportunity of being heard before the inhibition order was granted by Mwera J
- 4.Whether the applicant would suffer loss if the orders of 5th November 2008 are not stayed (nugatory aspect)
Key legal issues
#Requirement of a notice of appeal under rule 5(2)(b)
Where the intended appeal is not against the order the applicant seeks to stay, and the time for appealing against that order has expired without essential steps, the rule 5(2)(b) application fails.
The applicant's intended appeal was against the order declining review, not the conditional injunction of 5th November 2008 she sought to stay. The only notice of appeal on record was against Ali-Aroni J's decision. The time for lodging a notice of appeal against Mwera J's order expired in early 2009 with no essential steps taken, so a prerequisite to the application was absent.
Right to be heard before grant of inhibition order
The applicant was represented at the hearing before Mwera J and was aware of the injunction application, so there was no breach of natural justice.
Mwera J's ruling recorded that counsel appeared for the applicant, albeit saying little. Service of the application was effected in the applicant's presence per an affidavit of service, and as she lived with her husband it was unbelievable she was unaware of the application. Her claim of non-service was rejected.
Abuse of court process by duplicate applications
Deliberately failing to prosecute one's own application to await the outcome of a similar application, then seeking a rehearing of the same matter, is prima facie an abuse of process.
The applicant's application for review was similar to her husband's, which the High Court had already heard and dismissed. She deliberately declined to prosecute her own application so as to await her husband's outcome and 'try her luck'. Seeking the same court's decision on essentially a rehearing was an abuse of the process.
Nugatory aspect
The applicant was not truthful in claiming no means of livelihood, as the 2nd respondent had substantial savings abroad and they lived together as husband and wife.
On the second rule 5(2)() criterion, the court found evidence that the 2nd respondent held substantial savings in the Isle of Man; since the spouses cohabited, the applicant's assertion of destitution was doubtful, so the appeal would not be rendered nugatory without a stay.
Legal principles established
#- Filing of a notice of appeal is a prerequisite to the Court of Appeal entertaining an application under rule 5(2)(b) for stay of execution or an injunction
- An applicant under rule 5(2)(b) must demonstrate that the intended appeal is arguable and that it would be rendered nugatory if stay is not granted
Court orders
#- 1.The applicant's application dated 19th April 2011 is dismissed
- 2.Costs to the 1st respondent only
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Kisumu
- Succession Cause No. 785 of 2000
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules (application for stay of execution/injunction pending appeal)
Relief refused
#Stay of execution of the orders of the High Court made on 5th November 2008
The applicant failed to file a notice of appeal against the Mwera J order and failed to demonstrate that the intended appeal is arguable or that it would be rendered nugatory
Costs
Application dismissed with costs to the 1st respondent only, the 2nd respondent having supported the motion
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.
In the result, the applicant's application dated 19th April 2011 fails and it is accordingly dismissed with costs to the 1st respondent only in view of the fact that Mr. Ondego for the 2nd respondent indicated that he was supporting the motion.
the filing of a notice of appeal as a prerequisite to this court entertaining an application either for stay of execution or an injunction
it was, prima facie, an abuse of the court process to seek the same court's decision on her application as it was essentially a rehearing of the same matter
Issues in the judgment
#The body of the ruling identifies Saroj Suresh Khiroya as the applicant before the court, but the cause caption names Suresh Ratilal Khiroya as applicant and Saroj Suresh Khiroya as 2nd respondent, and refers to Saroj as 'the applicant's wife': "Mr. Ogejo for the 2nd respondent (Saroj, the applicant's wife) did not have much to say in the proceedings as at this point."
The judgment refers to the judge of the 5th November 2008 orders inconsistently as both Abida-Aaron J. (in the caption) and Mwera J. (in the body): 'the orders of the superior court made on 5th November, 2008, by Mwera J.'
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Suresh Ratilal Khiroya v Bina Sanghani & another [2011] KECA 139 (KLR)", Case Analysis (2011). Civil Application No. NAI. 102 of 2011 (UR 68/2011). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2011/139/eng@2011-07-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.