[2021] KECA 859 (KLR)
The Court of Appeal held that it lacked jurisdiction to review or vary its own order for security for costs except in cases of accidental slip or clerical error, which was not the case here. The order for security was consciously made after considering the application for stay of execution. The applicants failed to...
Source-derived case information.
- Citation
- [2021] KECA 859 (KLR)
- Parties
- Applicant: B. N. Kotecha & Sons Limited; Applicant: Hemal Kotecha; Respondent: Amalo Company Limited
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Civil Application 81 of 2019
- Procedural Posture
- Civil Application / Ruling on Application to Set Aside, Vary or Review Security for Costs Order
- Outcome
- application dismissed
- Judges
- GG Okwengu, GK Oenga, F Sichale
- Legal Topics
- Stay of Execution, Review of Court Orders, Security for Costs
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
B. N. Kotecha & Sons Limited
Applicant
Hemal Kotecha
Applicant
Amalo Company Limited
Respondent
Procedural Posture
Civil Application / Ruling on Application to Set Aside, Vary or Review Security for Costs Order
Legal Issues
- 1 Whether the Court of Appeal has jurisdiction to review or vary its own order for security for costs under the cited rules and statutes.
- 2 Whether the applicants have provided sufficient justification for setting aside, varying, or reviewing the order requiring deposit of Kshs 20,000,000 as security for costs.
- 3 Whether alternative security in the form of property titles can be accepted in place of the monetary deposit.
Ratio Decidendi
The Court of Appeal held that it lacked jurisdiction to review or vary its own order for security for costs except in cases of accidental slip or clerical error, which was not the case here. The order for security was consciously made after considering the application for stay of execution. The applicants failed to provide a proper reason or justification for reviewing the order, especially since the stay had already lapsed over a year prior and no explanation was given for the delay in bringing the application. The Court found no basis to exercise its inherent powers under the Appellate Jurisdiction Act in the circumstances and dismissed the application. No costs were awarded as the...
Court Disposition
application dismissed
Orders
- The motion to set aside, vary, or review the order for deposit of Kshs 20,000,000 as security for costs is dismissed.
- No order as to costs.
Full Case Text
Judgment text and source record
32 paragraphs
IN THE COURT OF APPEAL
AT KISUMU
(CORAM: OKWENGU, KIAGE & SICHALE, JJ.A.)
CIVILAPPLICATION NO. 81 OF 2019
BETWEEN
B. N. KOTECHA & SONS LIMITED..........1STAPPLICANT
HEMAL KOTECHA ....................................2NDAPPLICANT
AND
AMALO COMPANY LIMITED ......................RESPONDENT
(Being an application for setting aside, review or varying the order for depositing security of Kshs 20,000,000 made by this Court (Makhandia, Kiage and Odek JJA) on 2ndSeptember 2019in Civil Application No. 40 Of 2019
************************
RULING OF THE COURT
[1] By a notice of motion dated 25th September, 2020, the applicants moved this Court seeking orders to set aside, vary, or review orders that were made by this Court on 2nd September, 2019 for a conditional order of stay of execution pending appeal on deposit of Kshs. 20,000,000, and instead provide for alternative security for costs. The applicants have offered original titles for properties known as Kwale/Dalgube/984, Kwale/Dalgube/986, Kwale/Dalgube/987, Kwale/Dalgube/988 and Kwale/Dalgube/980 whose total value is Kshs. 55,755,000
[2] The order made on 2nd September, 2019 arose from a notice of motion brought by the applicants under Rule 5(2)(b) of the Court of Appeal Rules for an order of stay of execution pending the hearing of its appeal against the ruling of the High Court (Cherere J) made of 14th March 2019. The applicants explain that despite the efforts that they have made, they have not been able to raise the security ordered on 2nd September as its finances are tied up in loans advanced to 3rd parties and its financial situation has been further aggravated by the global Corvid 19 pandemic.
[3] Due to the Corvid pandemic, hearing of the application was scheduled to proceed by way of written submissions without the presence of the parties or their counsel. A hearing notice was served on the parties through email on 19th February, 2021 and the parties were given opportunity to file their written submissions. However, none of the parties has filed any written submissions nor has the respondent filed any reply to the motion. The parties having had ample opportunity to file their submissions and having failed to do so, we proceed to determine the motion on the basis of the information before us.
[4] We have carefully considered this motion. The applicant has failed to comply with the conditional order for stay of execution that was made by this Court on 2nd September, 2019 and now seeks to have the same set aside, and or varied. Under Rule 35 of the Court of Appeal Rules this Court has very limited powers to correct arithmetic or clerical errors arising from accidental slip or omission. This Rule cannot aid the applicant because the order sought to be reviewed is not an accidental slip but one which was consciously made by the Court following consideration of the application for stay of execution.
[5] The applicants have cited several Rules of the Court but none of the Rules cited provide for review of this court’s ruling or order. The applicant has also cited Sections 3A and 3B of the Appellate Jurisdiction Act, that provides this Court with inherent powers to make orders that may be necessary to meet the ends of justice. It is evident that this Court can only use these provisions in circumstances, where there is good reason to justify the exercise of such discretion.
[6] The applicants urge the Court to review the order because they are unable to raise the security that was ordered due to the company’s dire financial position. In the order sought to be reviewed, the Court had given the applicants 30 days from the date of the order to deposit the required security, in default of which, the order of stay was to automatically lapse. This means that the order of stay lapsed more than one year ago. We have not been told what the situation on the ground is. The applicant has also not explained why it has taken them a year to make the application.
[7] In our view, the applicant has not given any proper reason to justify our reviewing the order of 2nd September, 2019. Accordingly, we dismiss his motion. As the respondent has not filed any reply to the motion or filed any written submissions, we do not find it appropriate to award any costs. Those shall be the orders of the Court.
DATED AND DELIVERED AT NAIROBI THIS 19THDAY OF MARCH, 2021
HANNAH OKWENGU
....................................
JUDGE OF APPEAL
P. O. KIAGE
....................................
JUDGE OF APPEAL
F. SICHALE
...................................
JUDGE OF APPEAL
I certify that this is a true copy of the original.
Signed
DEPUTY REGISTRAR