Otundo & 5 others v Creek Development & Development Limited (Civil Application E069 of 2022) [2023] KECA 1225 (KLR)
The bottom line
#The Court of Appeal refused to lower a stay-of-execution cash deposit but allowed the appellants to instead deposit a land title with a valuation as security.
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 have met the threshold for this Court to exercise its residual jurisdiction to review its own orders, namely the establishment of fraud, bias, or other injustice
- 2.Whether the condition to deposit Kshs. 6,000,000/- as security for stay was onerous so as to deny the Applicants access to justice
- 3.Whether the security ordered should be substituted with a deposit of Kshs. 1,000,000/- or, in the alternative, a certificate of title of equivalent value
- 4.Whether time for compliance with the orders of 12th May 2023 should be enlarged
Key legal issues
#Threshold for review of the Court's own orders
The review jurisdiction is exceptional and requires establishment of fraud, bias, or other injustice; mere financial hardship does not meet it
The Court invoked Benjoh Amalgamated as affirmed by the Supreme Court in Menginya Salim Murgani, holding that the residual jurisdiction weighs the finality principle against the justice principle and must be invoked with circumspection. The Applicants alleged no fraud or bias; their complaint was the onerous amount of security, which did not constitute injustice.
Whether requiring security denied the Applicants access to justice
No - security for a money decree balances the respondent's interest with the appellant's right of appeal and does not amount to injustice
The Respondent held a money judgment now alleged at Kshs. 8,082,381.40 and was not opposed to a conditional stay. Security secures that decree while preserving the appeal. The Applicants' impecuniosity was an afterthought not placed before the Court at the stay hearing.
Substitution of the form of security
The Court reviewed only the nature of the security, permitting deposit of a title and valuation in place of the cash sum
The Applicants offered a title of equivalent value; the Respondent's only objection was the absence of the title and valuation. Since no prejudice would be caused if the title and a current valuation securing the decretal sum of Kshs. 6,540,000/- were availed, the Court varied the form, not the amount, of security, with a fresh 60-day compliance period.
Legal principles established
#- The Court of Appeal has residual jurisdiction to review its own orders, but it is exceptional jurisdiction to be invoked with circumspection only upon proof of fraud, bias, or other injustice
- In deciding whether to exercise its residual jurisdiction, the Court balances the finality principle (public interest and conclusiveness of litigation) against the justice principle (doing justice to the parties and public confidence in the justice system)
- A party seeking stay of execution must place before the Court all facts and materials bearing on its ability to furnish security at the hearing of the stay application; new facts on ability to pay cannot be raised on review
- Conditions for security on stay of execution are justified where the decree-holder holds a money judgment, as security balances the decree-holder's interest against the appellant's right of appeal
Court orders
#- 1.The application dated 17th October 2022 is allowed on condition that the Applicants shall, within 60 days from the date of the ruling, deposit with the Court a valid certificate of title to land and a current valuation report of the said title so as to secure the decretal sum of Kshs. 6,540,000/-
- 2.In default of compliance with order (1), the stay orders granted on 12th May 2023 will automatically collapse
- 3.The costs of the applications dated 17th October 2022 and 8th June 2023 shall abide the outcome of the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Environment and Land Court, Mombasa
- Mombasa ELC Case No 14 of 2013
- Jurisdiction invoked
- Rule 1(2) of the Court of Appeal Rules, 2022 - the Court's inherent power to make any orders necessary for the ends of justice or to prevent abuse of its process, and its residual jurisdiction to review its own orders
Relief refused
#Reduction of the security deposit from Kshs. 6,000,000/- to Kshs. 1,000,000/-
The Applicants failed to establish fraud, bias or other injustice; no new facts could be raised at the review stage as they ought to have addressed their ability to provide security at the stay hearing
Enlargement of time to comply with the orders of 12th May 2023
The Court substituted the nature of the security with a fresh 60-day compliance period rather than enlarging the original time
Costs
The costs of the applications dated 17th October 2022 and 8th June 2023 shall abide the outcome of the appeal
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.
where the Court is of final resort, and notwithstanding that it has not explicitly been statutorily conferred with the jurisdiction to reopen a decided matter, it has residual jurisdiction to do so in cases of fraud, bias, or other injustice with a view to correct the same
to allow them to raise any new facts at this stage would be to grant them a second bite at the cherry, and would be unfair to the Respondent
We will therefore only review our ruling by substituting the nature of the security that the Applicants shall provide
The application dated 17th October 2022 is allowed on the terms that there shall be a stay of execution of the judgment and decree of the Mombasa ELC No 14 of 2013 delivered on the 27th September 2022 on condition that the Applicants shall, within 60 days from the date of this ruling, deposit with this Court a valid certificate of title to land, and a current valuation report of the said title so as to secure the decretal sum of Kshs. 6,540, 000/-
In default of the compliance with order (1) above, the stay orders granted on 12th May 2023 will automatically collapse
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Otundo & 5 others v Creek Development & Development Limited (Civil Application E069 of 2022) [2023] KECA 1225 (KLR)", Case Analysis (2023). Mombasa Civil Application (review of stay orders of 12th May 2023 arising from Mombasa ELC Case No 14 of 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/1225/eng@2023-10-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.