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Court of AppealAllowedCivil Application No. NAI. 183 of 1999

KENYA CO-OPERATIVE CREAMERIES LTD v JACOB MARIUNUS KIRIAMA [2000] KECA 184 (KLR)

Court of Appeal of Kenya
4 February 2000
617 words in judgment
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The bottom line

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Kenya's Court of Appeal paused a Shs.10 million judgment against milk processor KCC, but only if it first paid the injured worker Shs.1 million.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Nairobi (Kwach, Shah and Bosire, JJ.A) on an application under rule 5(2)(b) of the Court's Rules for stay of execution pending appeal. The underlying judgment, delivered by Mbogholi Msagha, J on 1 July 1999, awarded the respondent - a milk salesman employed by the applicant who was shot in the neck by robbers while selling milk from his delivery vehicle - Shs.9,127,331 plus costs and interest. The Court observed that the learned judge had overlooked adding Shs.1,008,000 awarded for loss of earning capacity, so that the correct total was Shs.10,135,331. Counsel for the applicant indicated the intended appeal would challenge both liability - contending the employer was obliged to provide only reasonable security, not armed security, and pleading the respondent's own negligence - and quantum, taking issue with the awards for nursing care, toiletries and drugs, wheelchair, orthopaedic bed and bathroom alterations, and loss of earning capacity, four heads the Court noted were not specifically pleaded in the plaint. The Court found the appeal arguable on both limbs and, given a decree exceeding Shs.10,000,000, agreed that the appeal, if successful, might be rendered nugatory unless a stay issued. It stayed the decree on condition that the applicant pay the respondent Shs.1,000,000 within thirty days, failing which the application would stand dismissed with costs; costs of the application were made costs in the intended appeal. For lower courts, the ruling illustrates the twin requirements of an arguable appeal and nugatory effect, and the practice of granting conditional stays.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the intended appeal is arguable, on both liability and quantum of damages
  2. 2.Whether the appeal, if successful, would be rendered nugatory unless a stay of execution is granted
  3. 3.Whether, and on what conditions, the decree of the superior court should be stayed pending appeal

Key legal issues

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01

Whether the intended appeal is arguable on liability

Holding

Yes. The applicant will argue it was obliged to provide only reasonable security, which does not include armed security, and will raise the respondent's own negligence; contributory negligence will be in issue at the hearing of the appeal.

Reasoning

Counsel for the applicant stated the intended appeal would challenge both liability and quantum. On liability, the applicant would argue it was obliged to provide only reasonable security, which does not include armed security, and would raise the respondent's own negligence. The Court did not decide these merits; it found only that they were fairly arguable, which is the threshold for relief under rule 5(2)(b), leaving contributory negligence and all other points open for the hearing of the appeal.

p. 2
02

Whether the appeal, if successful, would be rendered nugatory without a stay

Holding

Yes. Given a judgment in the respondent's favour exceeding Shs.10,000,000, the Court agreed the appeal, if successful, may be rendered nugatory unless a stay is granted.

Reasoning

The Court weighed the evidence in the case and the submissions of counsel against the size of the decree - a judgment in the respondent's favour exceeding Shs.10,000,000 once the omitted head of loss of earning capacity is included. It concluded that if the appeal succeeded, execution could render it nugatory unless a stay issued. This is the second limb of the rule 5(2)(b) test, applied on the facts without any general restatement.

p. 2
03

Pleading of the heads of damages awarded

Holding

The heads of nursing care, toiletries and drugs, wheelchair, orthopaedic bed, toilet and bathroom costs, and loss of earning capacity were not specifically pleaded in the plaint - a point supporting arguability on quantum, to be determined at the hearing of the appeal.

Reasoning

In testing arguability on quantum, the Court compared the itemised awards with the plaint and observed that four heads - nursing care, toiletries and drugs, wheelchair, orthopaedic bed, toilet and bathroom costs, and loss of earning capacity - were not specifically pleaded. It made no ruling on the consequence, reserving that for the hearing of the appeal, but the observation underpinned its conclusion that the quantum appeal was arguable and signals the pleading discipline expected for heads of damages.

p. 2
04

Arithmetic error in the decretal total

Holding

The judgment total should have been Shs.10,135,331, not Shs.9,127,331, because the learned judge overlooked adding Shs.1,008,000 awarded under loss of earning capacity; no order correcting the decree was made.

Reasoning

The Court recomputed the awards and found the decretal total understated: the learned judge had overlooked adding Shs.1,008,000 awarded under loss of earning capacity, so the figure should have been Shs.10,135,331 rather than Shs.9,127,331. The Court made no order correcting the decree - the point remains for the appeal - but the corrected figure informed its assessment that a decree exceeding Shs.10,000,000 was in play when weighing nugatory risk.

p. 1

Legal principles established

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  • An applicant for stay of execution pending appeal under rule 5(2)(b) must first demonstrate that the intended appeal is arguable.
  • The applicant must further demonstrate that the appeal, if successful, would be rendered nugatory unless a stay is granted; the size of the decree is relevant to that assessment.
  • A stay of execution may issue on conditions, including a directed part-payment to the decree-holder within a fixed period, with the application standing dismissed if the condition is not met.

Court orders

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  1. 1.The decree issued by the superior court stayed on condition that the applicant pays the respondent Shs.1,000,000 within 30 days, failing which the application stands dismissed with costs
  2. 2.Costs of the application to be costs in the intended appeal

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
majority
On appeal from
High Court of Kenya (referred to in the ruling as 'the superior court')
Jurisdiction invoked
Rule 5(2)(b) of the Rules of this Court (Court of Appeal Rules) - application for stay of execution pending appeal

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

we order that the decree issued by the superior court be stayed on condition that the applicant pays to the respondent a sum of Shs.1,000,000/= within 30 days from today, failing which its application will stand dismissed with costs.
p. 2Final orders - conditional stay of execution
The costs of this application will be costs in the intended appeal.
p. 2Final orders - costs of the application
We are satisfied that the applicant has an arguable appeal on both limbs, that is to say, on the issue of liability and quantum of damages.
p. 2Arguable appeal limb of the rule 5(2)(b) test
we agree that the appeal, if successful, may be rendered nugatory unless a stay is granted
p. 2Nugatory-appeal limb of the rule 5(2)(b) test
There is however a judgment of the superior court in the respondent's favour in a sum exceeding Shs.10,000,000/=.
p. 2Magnitude of the decree relevant to nugatory risk
We note that items numbered (ii), (iii), (iv) and (vi) afore-mentioned were not specifically pleaded in the plaint.
p. 2Heads of damages not specifically pleaded

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "KENYA CO-OPERATIVE CREAMERIES LTD v JACOB MARIUNUS KIRIAMA [2000] KECA 184 (KLR)", Case Analysis (2000). Civil Application No. NAI. 183 of 1999. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2000/184/eng@2000-02-04

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.