BY SAM ALFAN.
Stanbic Bank Kenya has suffered a blow after the Court of Appeal declined to suspend the hearing of a dispute between it and an airline, pending at the High Court.
The Appellate court said although the appeal by the lender was arguable, they were not convinced that the appeal would be rendered useless unless the trial was stopped.
Appellate court judges Mumbi Ngugi, Pauline Nyamweya and Weldon Korir dismissed the application seeking to suspend the high court proceedings adding that an order to suspend proceedings should be a weapon of last resort.
“Consequently, the notice of motion dated 28th October 2024 lacks merit and is hereby dismissed,” ruled the appellate judges.
The court dismissed the lender argument that the Bank will suffer extra costs if the appeal succeeds.
“We are thus not persuaded that the applicant has established that should the intended appeal eventually succeed, it will be rendered nugatory,” ruled the appellate judges while dismissing the application for stay.
Air Afrik Ltd sued the lender claiming the bank froze its bank account making it lose a lucrative with the government of South Sudan.
The airline said its operations were crippled after the bank unilaterally froze and reversed USD7.2Million (KSh9.2Billion) that had been credited by Juba to its account in February 2016.
The judges noted that the proceedings before the High Court commenced in 2016 and were at an advanced stage.
The judges added that from the evidence put forth by the parties, it was evident that various applications have been made before the trial court, contributing to the delay in the finalization of the suit.
“At the centre of this application is the competing rights of all parties to a fair hearing and expeditious resolution of disputes,” observed the judges.
The judges said it was their belief that the appeal would not be rendered an exercise in futility.
“Even in such an eventuality, the applicant will have an opportunity to have its case determined by a different judge. Among the courts constitutional duties is the dispensation of justice through expeditious determination of cases,” added the judges.
The further added that the High Court’s doors will remain open to the parties if the appeal succeeds.
An order for rehearing of the matter is available as a remedy, saving the appeal from being futile or worthless, added the judges.
Stanbic Bank moved to the Appellate court after Justice Nixon Sifuna dismissed an application for his recusal.
The lender argued that it has an arguable appeal against Justice Sifuna ruling, claiming that the Judge erred both in fact and law.
The lender argued that if the proceedings are not stayed, it will effectively be denied the right to be heard by an impartial court, which is protected by Article 50(1) of the Constitution.
Air Afrik Aviation ltd through its director Eric Agolla Lugalia vehemently opposed to the Bank’s application and issuance of stay orders against High Court proceedings.
He also opposes the application arguing that an order staying the proceedings will negatively impact the airline’s right to access justice and the right to be heard without unreasonable delay, noting that the matter was filed over 8 years ago.
The company’s director Eric Lugalia faulted the lender for the delays occasioned in the progression of the suit before the trial court.
Air Afrik maintained that the intended appeal will not be rendered nugatory since the lender will have an opportunity to challenge the decision, should its appeal be successful.
