Ruth Wanza Ndumbu v Symon Mwangi Kimaru [2001] KECA 233 (KLR)

Rule 5(2)(b) requires an applicant for stay to demonstrate, as the first limb, that the intended appeal is arguable, that is, not frivolous and disclosing at least one bona fide point for consideration on appeal. The court carefully considered the submissions made by the respondent and concluded that the applicant had failed to satisfy it that any arguable appeal existed. Because the first limb of the test was not met, the application could not succeed, and there was no occasion to weigh any other equitable consideration in the applicant's favour.

The second limb of the rule 5(2)(b) test requires the applicant to show that the appeal, if successful, would be rendered nugatory if execution of the decree is not stayed. The court expressly recorded that it was not satisfied on this limb. The two limbs are cumulative: an applicant must establish both arguability and the nugatory aspect together. Having failed to persuade the court on arguability and equally failed to demonstrate that the appeal would be rendered nugatory, the applicant could not meet the threshold for the discretionary relief sought.

Although the court acknowledged the applicant's difficult position and expressed sympathy, it stated that the Court does not act on emotions or sympathies. This affirms that the discretion under rule 5(2)(b) is governed by the established legal principles of arguability and nugatory aspect, and that hardship, sympathy or the equities of an applicant's predicament cannot substitute for the twin test. The statement disciplines future stay applications: relief follows the law, not sentiment, and courts should resist equitable appeals untethered to the two limbs.