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Court of AppealDismissedCivil Application No. Nai. 47 of 2005 (UR 25/2005)· [2009] KECA 301 (KLR)

1. Dr. Kea N. Barua 2. Aurelia Kwczynska v Town Construction Company Limited

Court of Appeal of Kenya
5 June 2009
ROR. S. C. OmoloEGE. M. GithinjiAVAlnashir Visram
1,873 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to halt execution of a judgment, confirming that judgment debtors must pay unless they can prove an appeal would be worthless.

What this practically means

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Executive summary

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This was an application under Rule 5(2)(b) of the Court of Appeal Rules by Dr. Kea N. Barua and Aurelia Kwczynska for stay of execution of the ruling of Kuloba J. dated 13th October 2003 in H.C.C.C. No. 2389 of 1998, under which their defence and counterclaim was struck out and judgment entered for Town Construction Company Limited for unpaid contract remuneration. The ruling, signed and dated by Kuloba J. before he left office, was delivered by Lenaola J. on 13th November 2003. The applicants did not file a notice of appeal against that ruling, but instead sought review before Lenaola J. on the ground that the ruling was a nullity; that application was dismissed on 18th February 2005, and they filed a notice of appeal against that ruling. The Court of Appeal applied the established two-limb test for Rule 5(2)(b) applications: arguability of the intended appeal and whether the appeal would be rendered nugatory absent stay. The Court assumed without detailed analysis that the grounds of appeal, which raised the novel question whether a ruling signed by a retired judge could validly be pronounced by his successor, were ex facie arguable. However, the nugatory limb failed. The respondent was entitled to the fruits of its judgment, which remained valid until set aside; the applicants had admitted in their pleadings paying only Shs. 25 million out of the contract sum of Shs. 38,845,000; the escalation of the decretal sum through interest was attributable to the applicants' own conduct in failing to pay the balance after selling the twelve completed flats for Shs. 51 million; and there was no evidence that the respondent could not refund the decretal sum if the appeal succeeded. The application was accordingly dismissed with costs to the respondent. The decision binds subordinate courts on the Rule 5(2)(b) test and on the principle that a judgment stands valid until set aside on appeal.

Key legal issues

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01

Whether the intended appeal was arguable

Holding

The Court was prepared to assume, without detailed examination, that the grounds of appeal were ex facie arguable, since the appeal raised technical legal grounds including whether a ruling signed by a retired judge could validly be pronounced by his successor.

Reasoning

The Court declined to analyse the grounds in detail because the appeal had already been filed and detailed comment would be preemptory and might embarrass the judges who would ultimately hear the appeal. It nonetheless assumed arguability, thereby satisfying the first limb of the Rule 5(2)(b) test, but this alone did not entitle the applicants to stay.

p. 3
02

Whether the appeal would be rendered nugatory if stay was not granted

Holding

The nugatory-ingredient test failed. The respondent was entitled to the fruits of its judgment, which remained valid until set aside; the applicants had admitted non-payment of the balance; and they had not shown that the respondent could not refund the decretal sum if the appeal succeeded.

Reasoning

The Court rejected each of the three nugatory grounds advanced: the respondent was entitled to the decree; the escalation of the decretal sum was attributable to the applicants' own failure to pay the contract balance after receiving and selling the twelve flats for Shs. 51 million; and there was no evidence that the respondent lacked the financial capacity to refund the decretal sum if the appeal ultimately succeeded. The interests of justice therefore warranted dismissal.

p. 4

Legal principles established

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  • An applicant under Rule 5(2)(b) must satisfy the Court both that the intended appeal is arguable and that, unless the order sought is granted, the appeal, if successful, would be rendered nugatory
  • A judgment of the High Court is valid and enforceable until set aside on appeal; a judgment debtor cannot resist execution merely by asserting the judgment is wrong
  • Where the judgment debtor's own conduct, such as delay in paying a contract balance, has caused interest to escalate the decretal sum, that escalation does not support a claim that the appeal would be rendered nugatory

Court orders

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  1. 1.The application for stay of execution pending the lodging, hearing and determination of the intended appeal is dismissed
  2. 2.Costs of the application are awarded to the respondent
On appeal from
High Court of Kenya at Nairobi
H.C.C.C. No. 2389 of 1998
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "1. Dr. Kea N. Barua 2. Aurelia Kwczynska v Town Construction Company Limited", Case Analysis (2009). Civil Application No. Nai. 47 of 2005 (UR 25/2005). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2009/301/eng@2009-06-05

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