[2012] KECA 2 (KLR)
The court found that, considering the protracted nature of the dispute, the substantial sum involved, the history of litigation between the parties, and the importance of resolving commercial disputes expeditiously for economic stability, it was in the interest of both parties that the pending application for stay...
Source-derived case information.
- Citation
- [2012] KECA 2 (KLR)
- Parties
- Applicant: Shimmers Plaza Limited; Respondent: National Bank Limited
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Civil Application 38 of 2012
- Procedural Posture
- Stay Application / Application for Certification of Urgency in Stay of Execution Pending Appeal
- Outcome
- Application for certification of urgency allowed.
- Judges
- AM Githinji
- Legal Topics
- Stay of Execution, Injunctions, Statutory Power of Sale, Commercial Disputes, Urgency Certification
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Shimmers Plaza Limited
Applicant
National Bank Limited
Respondent
Procedural Posture
Stay Application / Application for Certification of Urgency in Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the application for stay of execution pending appeal should be certified as urgent.
- 2 Whether the circumstances justify expedited determination of the stay application.
Ratio Decidendi
The court found that, considering the protracted nature of the dispute, the substantial sum involved, the history of litigation between the parties, and the importance of resolving commercial disputes expeditiously for economic stability, it was in the interest of both parties that the pending application for stay of execution be determined urgently. The judge therefore certified the notice of motion as urgent, reversing the earlier decision to decline urgency and enabling the parties to proceed with the application without undue delay.
Court Disposition
Application for certification of urgency allowed.
Orders
- The notice of motion dated 8th February 2012 is certified as urgent.
Full Case Text
Judgment text and source record
24 paragraphs
IN THE COURT OF APPEAL
AT NAIROBI
(CORAM: GITHINJI, J.A (IN CHAMBERS)
CIVIL APPLICATION NO. NAI.38 OF 2012(UR 25 / 2012)
BETWEEN
SHIMMERS PLAZA LIMITED.....................................APPLICANT
AND
NATIONAL BANK LIMITED...................................RESPONDENT
(An application for stay of execution pending the hearing and determination of an Intended Appeal against the Ruling and or Order of the High Court, Commercial & Admirality Division Milimani Nairobi (Kimondo, J.) on 27th January, 2012
in
HCCC NO. 895 OF 2009)
*************************
RULING
On 9th February 2012 I declined to certify the Notice of motion dated 8th February 2012 as urgent. The applicant herein has applied for an order of stay of execution of the High Court Ruling and Order in HCCC No. 895 of 2009 dated 27th January 2012 dismissing the applicant’s application for injunction pending the hearing of the suit.
I have now heard the certificate of urgency inter partes pursuant to Rule 47(5) of the Court of Appeal Rules.
I have taken into account the facts that the loan that the applicant secured as a guarantor was advanced over 14 years ago; that the dispute has been raging in court since 2001 when the applicant filed HCCC No. 229 of 2001 and obtained an order of injunction to restrain the respondent bank from exercising its statutory power of sale; that the respondent bank appealed against the order of injunction in Civil Appeal No. 26 of 2002; that on 3rd July 2009 the Court of Appeal confirmed the injunction until the respondent’s bank issued a valid statutory notice on the applicant; that the respondent bank issued afresh a statutory notice dated 17th September 2009 demanding Shs.665,313,974 as at 17th September, 2009; that the applicant disputed the statutory notice and filed HCCC No. 895 of 2009 and the interlocutory application for injunction which was dismissed by the High Court on 27th January 2012 triggering the present application that HCCC No. 895 of 2009 is similar to the previous suit and that the respondent bank has not exercised its statutory of sale notwithstanding that there is no subsisting order of injunction.
Having considered those factors and recognizing that for the stability of the economy resolution of commercial disputes should not be delayed, I am now of the view that it is in the interest of both parties that the pending application should be determined as a matter of urgency so that they can move forward.
Consequently, I now certify the notice of motion dated 8th February 2012 to be urgent.
Dated and delivered this 28th day of March 2012
E. M. GITHINJI
.............................
JUDGE OF APPEAL
I certify that this is a true copy of the original
DEPUTY REGISTRAR