Geoffrey Orao Obura v Martha Karambu Koome

The court restated the long-standing two-limb test governing its discretion under rule 5(2)(b), citing Stanley Munga Githunguri v Jimba Credit Corporation Ltd. First, the intended appeal must be arguable or at least not frivolous; second, the court must guard against the appeal being rendered nugatory if stay is refused. The court then exercised that discretion by moulding the relief: rather than grant an unconditional stay or refuse one, it attached a condition securing the disputed sum so that neither party's position would deteriorate pending the appeal.

Counsel for the respondent pointed out that the apprehension that Daima Bank, 'vulnerable in the present economic climate', might be unable to refund the money if the appeal succeeded had already been addressed by the superior court's order that the money be deposited in an interest-earning account in the joint names of both counsel. The court accepted that this answered the nugatory concern and, adopting the same mechanism, conditioned its own stay on a deposit of Shs.3,000,000 within thirty days, failing which the stay would lapse.

The applicant relied on the earlier finding that his intended appeal was not frivolous and contended that the respondent had waived her right to enforce the undertaking by leading him to sue his former clients, Halai Developers Ltd, in H.C.C.C No. 2361 of 1997, still pending. The court noted his affidavit admission that he gave the undertaking but that his client did not put him in funds, declined to say much at the interlocutory stage, and held that the point would be canvassed in the appeal; it did not find the appeal unarguable.

The court observed that final judgment had been entered against the applicant following his non-compliance with the order to make good the undertaking. To the complaint, advanced in the earlier application, that he had not been given a proper opportunity of canvassing his defence, the court answered that success in the intended appeal would return him to the superior court to be heard; but as matters stood there was a judgment against him, which supported preserving the position through a conditional stay rather than an unconditional one.