Titus Kiondo Muya & 1 other v Peter Njoroge Baiya & 2 others
The bottom line
#Kenya's Court of Appeal dismissed a bid to delay paying KShs 1 million in legal costs because the winner could easily afford to refund the money if the appeal succeeded.
What this practically means
#Executive summary
#Key legal issues
#Whether the intended appeal was arguable
The court found the intended appeal arguable without expressing concluded views on its merits.
The applicant intended to challenge the exercise of judicial discretion by the Deputy Registrar and Waweru, J on the taxation reference. Weighing the facts and circumstances, and mindful that it should not prejudice the eventual appellate bench, the court was prepared to hold the intended appeal arguable and moved to consider the nugatory aspect.
Whether the intended appeal would be rendered nugatory absent a stay
The applicant failed to establish nugatorydness; the 1st respondent's disclosed sources of income (parliamentary salary and legal practice) made refund possible.
The applicant claimed ignorance of the 1st respondent's sources of income, but the court found this not candid: the 1st respondent was a member of Parliament receiving substantial remuneration and an advocate with a thriving Nairobi practice. The applicant adduced no evidence that the 1st respondent was impecunious or unable to refund the costs if the appeal succeeded.
Cumulative nature of the Rule 5(2)(b) conditions
Both conditions must be satisfied; failure on either dooms the application.
The court reiterated that an applicant must show the appeal is arguable and, in addition, that the appeal's success would be rendered nugatory absent the order. Having satisfied the first limb but failed the second, the applicant's application necessarily failed. This restatement binds lower courts and future Rule 5(2)(b) applicants.
Legal principles established
#- An applicant under Rule 5(2)(b) must satisfy two cumulative conditions: that the appeal is arguable and that, absent the order sought, the appeal's success will be rendered nugatory.
- An appellate court will be slow to interfere with the exercise of judicial discretion unless the decision is plainly wrong or the court below acted on a wrong principle.
- A party alleging that the opposing party cannot refund monies if paid over bears the burden of demonstrating that inability.
Court orders
#- 1.Application under Rule 5(2)(b) dismissed with costs to the 1st respondent
- On appeal from
- High Court of Kenya at Nairobi
- H.C. Election Petition No. 31 of 2008
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Titus Kiondo Muya & 1 other v Peter Njoroge Baiya & 2 others", Case Analysis (2009). Civil Application 182 of 2009. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2009/444/eng@2009-09-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.