Nation Media Group Limited & 2 others v Kamotho & 3 others (Civil Application 108 of 2006) [2006] KECA 203 (KLR)
The bottom line
#Kenya's Court of Appeal paused collection of a Shs.14 million libel judgment against Nation Media Group, but only after the money was deposited in a joint account.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the intended/appeal in Civil Appeal No. 284 of 2005 is arguable and not frivolous
- 2.Whether, unless execution of the decree is stayed, the appeal if successful would be rendered nugatory
- 3.Whether the respondents' financial means to refund the decretal sum is decisive against a stay
- 4.What conditions, if any, should attach to a grant of stay
Key legal issues
#Arguability of the appeal
The appeal was not frivolous: arguable grounds existed on liability for libel, on the reasonableness of the damages awarded, and on the justification for aggravated damages.
The court noted the appeal raised issues of fact and law, including whether the words were defamatory and referred to the respondents, whether witnesses proved they understood the words as defamatory, whether aggravated damages were justified, and whether the awards were excessive. It found the awards to the 1st and 2nd respondents prima facie relatively high and the appropriateness of aggravated damages arguable.
Nugatory value and means to refund
Although the respondents had assets sufficient to refund the decretal sums, that was not the end of the matter; the possibility of considerable reduction of damages on appeal, delay and the imponderables of selling land tilted the balance of convenience in favour of the applicants.
The court applied Reliance Bank Ltd v Norlake Investments Ltd, holding that inability to refund is not the only factor rendering success nugatory. Given possible appellate reduction of awards, long delay in recovering taxed-off sums and the difficulties of selling land forming the bulk of respondents' assets, the applicants might be greatly inconvenienced, so the balance of convenience favoured a stay.
Conditional stay as the just remedy
The applicants' offer to deposit the decretal sum in a joint interest-bearing bank account was accepted as a condition of the stay, serving the justice of the case and protecting the respondents if the appeal succeeds.
The first applicant, a large company with substantial assets, offered security and proposed investment of the decretal sum in a joint account of the advocates. The court found an order for deposit of the judgment sum would manifestly serve the justice of the case, and granted the stay on that condition within 14 days, the bank to be agreed by the advocates.
Legal principles established
#- The jurisdiction under Rule 5(2)(b) is discretionary and is exercised on settled principles: the applicant must show the appeal is not frivolous and that, absent a stay, the appeal would be rendered nugatory; the jurisdiction extends to monetary decrees.
- A respondent's financial ability to refund the decretal sum is not invariably decisive; whether success of an appeal would be rendered nugatory must be assessed in the circumstances of each particular case.
Court orders
#- 1.Application allowed; execution of the decree of the High Court stayed pending determination of Civil Appeal No. 284 of 2005
- 2.Stay conditional upon the applicants depositing Shs.13,000,000/= being the total judgment sum in an interest-bearing bank account in the joint names of the respective advocates within 14 days, the bank to be agreed by such advocates
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya
- H.C.C.C. No. 368 of 2001
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules (original jurisdiction to grant stay of execution, stay of proceedings or injunction pending appeal)
Relief refused
#Unconditional stay of execution
Stay granted only on condition that the judgment sum be deposited in a joint interest-bearing account as a sign of good faith and in the interest of justice
Costs
No costs order made in the ruling; the applicants remain adjudged liable to pay the costs of the suit and interest on costs and damages under the decree appealed from.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
the original jurisdiction conferred by Rule 5 (2) (b) to grant a stay of execution; stay of proceeding or an order of injunction pending appeal is discretionary and that the discretion is exercised on settled principles
the fact that a respondent in an application of this kind has the financial means to refund the decretal sum should the appeal succeed is not invariably decisive
We do not understand the position to be that in a decree for the payment of money, for example, the only thing that would render success of an appeal nugatory is the inability of the other side to refund the decretal sum if it has been paid over to it
Accordingly, we allow the application and grant an order staying the execution of the decree pending the determination of Civil Appeal No. 284 of 2005 on condition that the applicants do deposit Shs.13,000,000/= being the total judgment sum in an interest bearing bank account in the joint names of the respective advocates for the parties within 14 days from date hereof.
Issues in the judgment
#The judgment states the judgment sums awarded are 'in excess of Shs.14,000,000/=' and the stay condition is Shs.13,000,000/= as 'the total judgment sum', a discrepancy of about Shs.1,500,000/= when the itemised awards (Shs.7m + Shs.3m + Shs.2.5m + Shs.1.5m = Shs.14m) are totalled.
The judgment does not state any costs order for the application, so costs of the application are unrecorded.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (4)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Principal Secretary, Ministry of Education, Department of Vocational & Technical Training & another v Kenya Union of Post Primary education Teachers (KUPPET) & 2 others (Civil Application E248 of 2022) [2024] KECA 683 (KLR)[2024] KECA 683 (KLR)14 Jun 2024applied
- Maasai Mara University v Daniel K. Cheboi & 3 others [2015] KECA 271 (KLR)[2015] KECA 271 (KLR)30 Oct 2015
- Co-operative Bank of Kenya Ltd v Banking Insurance & Finance Union (Kenya (Civil Application 133 of 2015) [2015] KECA 353 (KLR)[2015] KECA 353 (KLR)2 Oct 2015
- Co-operative Bank of Kenya Ltd v Banking Insurance & Finance Union Kenya [2014] KECA 109 (KLR)[2014] KECA 109 (KLR)25 Jul 2014followed
Cite this brief
#Cite this brief
Caselaw, "Nation Media Group Limited & 2 others v Kamotho & 3 others (Civil Application 108 of 2006) [2006] KECA 203 (KLR)", Case Analysis (2006). Civil Application No. 108 of 2006. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2006/203/eng@2006-06-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.