Coil Limited & Nasr General Contracting Company Limited v Attorney General & I & M Bank (U) Limited (Miscellaneous Application 10 of 2023)
Observed later treatment
No later-treatment classification is recorded for this judgment.
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Holding
For an interim stay application, it suffices to show that a substantive application is pending and that there is a serious threat of execution before its hearing. Court found a substantive application for temporary injunction was pending and that the only barrier to encashment of the performance guarantee was an administrative order. An imminent threat of execution existed. Court also held that the misnomer in naming parties (individual companies instead of joint venture) was an inconsequential technicality rectifiable by amendment. Application allowed.
Outcome
Interim stay granted pending determination of substantive application for temporary injunction; party name corrected by amendment
Facts
The applicants obtained an interim injunction restraining the 2nd respondent from cashing a performance guarantee issued in favour of the Ministry of Water and Environment in connection with a water project contract. The 1st respondent appealed and the High Court set aside the interim injunction in Miscellaneous Appeal No. 40 of 2023 on 29 December 2023. The applicants then filed an appeal to the Court of Appeal (Civil Appeal No. 1666 of 2023) and concurrently filed this application for an interim stay of execution pending determination of their substantive application for a temporary injunction. The 1st respondent had demanded encashment of the guarantee before its 31 December 2023 expiry. Only an administrative order prevented the 2nd respondent bank from honouring that demand. The 1st respondent opposed the stay, arguing abuse of process through multiple applications, that the guarantee arose from contract not the court order, and that the applicants had no locus because they sued as individual entities rather than as the joint venture that contracted.
Issues
- Whether an interim order of injunction should be granted to stay execution of the orders in Miscellaneous Appeal No. 40 of 2023 pending determination of the substantive application for temporary injunction.
Orders
- Application allowed.
- Applicant name corrected by amendment from 'Coil Limited and Nasr General Contracting Company Limited' to 'Coil and Nasur General Contracting Co. Joint Venture'.
- Costs in the cause.
Rules and key headnotes
Legislation cited (10)
- Civil Procedure Act s.98
- Judicature Act s.33
- Judicature Act s.38(1)
- Judicature Act s.38(3)
- Judicature Act s.39
- Judicature (Court of Appeal Rules) Rule 42(1)
- Civil Procedure Rules Order 50 rule 3A(1)
- Civil Procedure Rules Order 50 rule 3A(2)
- Civil Procedure Rules Order 50 rule 3A(3)
- Civil Procedure Rules Order 52 rules 1-3
Cases cited (8)
- Somali Democratic Republic v Anoop Sunderial Trean (Court of Appeal Civil Appeal No. 11 of 1998)
- Wilson v Church (1879) 12 Ch D
- Hwang Sung Industries Limited v Tajdin Hussein and Others (Supreme Court Civil Application No. 19 of 2008)
- Zubeda Mohamed and Another v Laila Wallia and Another (Civil Reference No. 7 of 2016)
- Patrick Kaumba Wiltshire v Ismail Dabule (Civil Application No. 3 of 2018)
- Male Mabirizi v Attorney General (Miscellaneous Application No. 917 of 2021)
- Chief Allanah & Others versus Mr. Knayo Kpolokwu & Others
- J.B Kohli and Others v Bachulal Popatlal [1964] EA 219
Full judgment
The original judgment as reported. Read the original PDF before relying on any passage.